This landmark decision from the Asylum Support Tribunal concerns when the UK government is required to provide social support to asylum seekers (asylum seekers are not entitled to work under UK immigration law).  The decision relates to Iraqi asylum seekers have claims before the European Court of Human Rights (ECtHR).   

The Asylum Support Tribunal made this decision in an appeal by a 22 year old Iraqi national, against the government’s decision to withdraw what is known as Section 4 support from him.  Section 4 of the Immigration and Asylum Act 1999 (as amended by Section 49 of the Nationality, Immigration and Asylum Act 2002 and Section 10 of the Asylum and Immigration (Treatment of Claimants) Act 2004) is designed to prevent asylum seekers becoming destitute, homeless and hungry because an individual who is claiming asylum or who has had his/her asylum application rejected is not allowed to work under UK law, and thus has no independent means to have accommodation or food. 

Regulation 3 of the Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005 (the ‘2005 Regulations’) sets out the criteria which the Secretary of State must take into account when determining whether or not to provide support to an asylum seeker.  Under Regulation 3(2)(e) support should be given if it is necessary for ‘avoiding a breach of a person’s Convention rights, within the meaning of the Human Rights Act 1998’ (the Human Rights Act makes the ECHR take effect as a matter of everyday UK law).   

The respondent Secretary of State argued that the appellant no longer satisfied one of the conditions of Regulation 3(2)(e)e) of the 2005 Regulations. 

In order for an applicant who has an outstanding ECtHR application to demonstrate his/her entitlement to section 4 support under regulation 3(2)(e), the onus is on him/her to show three things (as set out in AS/11/04/00292).  First, the applicant must show s/he has exhausted all domestic remedies.  Secondly, s/he must have lodged an application to the ECtHR that has substance and is supported by evidence, and not merely fanciful, or ‘obviously hopeless or abusive’ (Birmingham City Council and Clue and SSHD and Shelter v Clue [2010] EWCA Civ 460, Dyson LJ).  Thirdly, the applicant must have raised the possibility of an imminent risk of serious and irreparable damage in the event of a return to their country of origin.

In the leading case of Sufi and Elmi v UK 8319/07 [2011] ECHR 1045 (28 June 2011), the ECtHR held that the burden of proof is on the respondent (Secretary of State) to show that an effective remedy is available.  However unlikely the applicant’s chances of succeeding through domestic remedies, s/he must show s/he has applied for all of them.  The ECtHR held in Sufi, however, that there may be cases where the applicant can show that an available remedy is bound to fail based on current case law.  The burden of proof is on the appellant to show this, and in the instant case the judge found the burden had been discharged.  In light of the Upper Tribunal’s decision in HM (Iraq), and the fact that the Court of Appeal judgement in that case remained pending, judicial review was not available to the appellant.  Permission to appeal to the Court of Appeal was granted too late.  The appellant was seeking to rely on the UNHCR’s position that the level of indiscriminate violence in Iraq was such that it was not safe to return failed asylum seekers there.  As such a human rights application to the ECtHR was the only remedy left open to him to pursue at the relevant time, in March 2011. 

The appellant in this case - having demonstrated he had exhausted all domestic remedies, lodged an application to the ECtHR of at least some merit, and having raised the possibility of imminent harm on return to Iraq – was entitled to section 4 support, under regulation 3(2)(e) to avoid a breach of his human rights.

 Zoë Sutherland

The UK Border Agency has issued a new policy statement relating to restricted discretionary leave to remain applications under Article 1F of the 1951 Refugee convention. The new statement states that as of 2nd September 2011 all cases excluded from the protection of the Refugee Convention by virtue of Article 1F but who cannot be immediately removed from the UK due to Article 3 of the European Convention of Human Rights will be subject to new, tighter, restricted leave policy implementations.

It is said that the new policy imposes a short period of leave and appropriate conditions while removal continues to be pursued. The UK Border Agency state that all cases excluded from refugee protection will remain a priority for removal enforcement even where removal cannot be enforced at the time. Instead, such a case will remain under close review by UKBA and removal will be enforced at the earliest opportunity. Reviews will be conducted at six monthly intervals as a minimum, at the time when the Restricted DL expires.

Article 1F seeks to deny individuals the benefits of refugee status because they are deemed undeserving of protection for serious reasons such as: having committed war crimes, crimes against peace or humanity, serious non-political crimes or acts contrary to the purposes and principles of the UN. Also, the UK Border Agency use Article 1F to ensure that such persons do not avoid being returned to their home country where they would be held to account for their acts. It is said that Article 1F is therefore intended to protect the integrity of the asylum process.

Therefore, such applicants will only be granted restricted discretionary leave to remain for a maximum of 6 months at a time, with some or all of the following restrictions:

·       Conditions restricting the applicant’s employment or occupation in the UK;

·       Conditions restricting where the applicant can reside;

·       Conditions requiring the applicant to report to an immigration officer or the Secretary of State at regular intervals; and

·       Conditions prohibiting the applicant from studying at an educational institution.

Moreover, all such Article 1F cases will be referred to the Independent Safeguarding Authority (ISA) who will consider whether such persons are to be prevented from undertaking voluntary or paid work in ISA-regulated fields.

It is said that this new policy is applicable to all relevant applicants, whether they are a person who is seeking leave or has submitted a renewal of leave to remain in the UK. This includes cases in which a previous grant of leave to remain was for a period longer than 6 months.

The UK Border Agency have made the above changes in light of their powers under section 3(1)(c) of the Immigration Act 1971. They state that anyone who knowingly fails to observe a condition of their leave commits an offence by virtue of section 24 (1)(b)(ii) of the Immigration Act 1971. Therefore, where appropriate, this policy will be enforced prosecuting individuals who do not comply with the conditions set upon leave.

The asylum screening unit (known as ASU) has initiated a new way for asylum seekers to book appointments. The new change means that the ASU will start to father further information from asylum seekers in advance of their screening appointment in order for the team to be able to complete administrative duties prior to the applicants scheduled appointment. The aim is to reduce the length of screening interviews and meet the needs of asylum seekers in an improved way. The new changes mean that interpreters will be provided by the UK Border Agency who will cover any charges for such calls.

All legal representatives are advised to only call on behalf of client when the client is present in order for the asylum seeker to answer certain questions.

Asylum seekers wishing to book an appointment at the ASU must call their direct contact number which is 020 8196 4524. More information can be found on the asylum screening unit pages of the UK Border Agency website.

15th July 2011

Two of the appellants are partners.  They were born and grew up in the DPRK before going to live illegally in China, where they met and formed a relationship.  The UK could not return them to China, for fear they would be returned against their will to the DPRK, where they would be at risk of persecution for remaining outside the country illegally.  They claimed asylum in the UK in 2007.  The third appellant was born in the DPRK.  She moved to China with her father, living and working there illegally for 20 years, during which her father died.  She claimed asylum in the UK in 2008.

According to Article 1A(2) of the 1951 Refugee Convention, if someone claims asylum on the basis that they have a well-founded fear of persecution in his/her country of origin, further conditions apply if they are entitled to acquire a second nationality.  That person must take steps to seek protection under his/her second nationality, unless there is reason to believe s/he would be subject to persecution in that country also.  Protection from a third state, in this case the UK, is a last resort.

It is accepted in international law that it is up to individual states to determine whether someone is one of its nationals.  In this case, the Home Office had determined that the ROK treated North Koreans as nationals of the ROK.  This was on the basis that Article 3 of the ROK’s Constitution affords protection to all citizens of the peninsula of Korea, the ‘one Korea’ as it sees it. 

There is also scope under the ROK’s 1997 Protection Act for support to be provided to lineal ascendants and descendants of North Korea.  However, the Act is interpreted as giving the government the right to reject applications from persons who have not based their lives – in terms of family and work – in the DPRK for some time.  In practice, the period of time after which applications for documents proving ROK citizenship will be rejected, is ten years. 

Further reasons why applications for documentation of ROK citizenship will be rejected are: if the applicant does not want to settle in the ROK, or if s/he is deemed to be a Chinese national claiming to be North Korean in order to obtain documents.  The defector issue is a serious irritant in relations with the DPRK and China.

In general, North Korean nationals can lawfully be removed to South Korea, as their treatment in South Korea does not amount to ill-treatment (Australian case of NBLC v Minister for Immigration [2005] FCA 1052) or persecution (under the European Directive 2004/83/EC or Article 3 of the ECHR).  Thus, if the appellants could be said to be entitled to claim South Korean nationality, they would have to apply for protection as such.

However, the court found that whilst the appellants acquired South Korean citizenship at birth, they would be deemed by the ROK to have lost their South Korean nationality.  They did not therefore have a ‘subsisting’ or ‘demonstrable’ entitlement to South Korean nationality.  They were refugees with one nationality only – North Korean.

AM (Evidence – route of return) Somalia [2011] UKUT 54 (IAC)

The appellant, a Somali citizen, appeals against the determination of the First-Tier Tribunal dismissing his appeal against the respondent’s decision of 13 January 2010 to make a deportation order against him following his conviction of possessing a false identity document with intent for which he was sentenced to twelve months’ imprisonment.

The appellant was born in 1983 and had arrived in the UK on 26th June 2009, whilst attempting to gain entry with false documents. He was prosecuted and following his conviction and imprisonment the respondent made a deportation order against him under the provisions of s. 32(5) of the UK Borders Act 2007. He claimed he would be harmed if returned to Somalia which he had left at the age of 10 to Yemen.

In 2007 he left Yemen for Saudi Arabia where he worked as a security guard but in early 2009 he was arrested by the authorities there and returned to Somalia. He claimed that at the end of March 2009 after he had been praying in a mosque he was approached to join the “Al Shabab” (AS)   clan, and if he didn’t he would be killed. Following this conversation he confided in his uncle on what to do he had heard that the clan were after him and he made arrangements with an agent to travel to the UK via Dubai.

At the hearing before the First-tier Tribunal the appellant said that he had not had contact with anyone in Somalia and had contacted his mother in Yemen who informed him that she did not know the whereabouts of his wife and children. The appellant accepted that when he was deported from Saudi Arabia and returned to the airport at Mogadishu, he travelled to Afgoye. He then stayed with his uncle who had raised $2,500 for him. The Tribunal took into account the country background material in the COI Report for Somalia November 2009 and the Human Rights Watch Report, 19th April 2010. There was expert evidence in a report from Dr Luling dated 16th April 2010 in support of the appellant’s claim that he was from a minority clan.

The Tribunal accepted that the appellant was from Southern Somalia however, they were not satisfied that the appellant had established that he was from the minority Benediri clan. They were also not satisfied that he had ever encountered the AS, been questioned by them or subjected to an attempt to recruit him. The Tribunal went on to say that even if they were wrong in their conclusions and if the appellant was from a minority clan, the evidence indicated that he was one of those individuals who would be able to access protection on his return from a majority clan. He and his wife both had close relatives living in Afgoye who were apparently able to live there without having encountered security problems and he would be able to secure the protection of members of a majority clan. The tribunal went on to consider the issue of humanitarian protection.

In the light of the conclusions the Tribunal reached on the appellant’s asylum claim, it also found the appellant failed to show that his removal would lead to a breach of either Articles 2 or 3 of the ECHR. Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal on the limited grounds that it was arguable that the First-tier Tribunal had failed to deal adequately with the issue of whether any risk of harm arose from the route of return to the appellant’s home area of Afgoye.

This is a case where the route of return, Mogadishu Airport, has been identified and we therefore need to consider whether the use of that route gives rise to a real risk of serious harm entitling the appellant to humanitarian or Article 2 protection in accordance with para 84 of HH (Somalia) v Secretary of State [2010] EWCA Civ 426.

                  “84. In conclusion, our provisional view is that the Directives read together require that the issues of safety during return should be considered as part of the decision on entitlement....In any case Home Secretary did not deal with safety during return but where the appellant raises a cogent argument that there might not be a safe route of return, the appeal tribunal would have to deal with that issue possibly after calling for information from the Home Secretary as to his intentions. In any event, as it seems to us at present, the decision on entitlement must be taken within a reasonable time and cannot be left until the Home Secretary is in a position to set safe removal directions.”

The Upper Tribunal concluded that whilst the situation in Somalia is volatile, the appellant was able to make the journey from Mogadishu to Afgoye on two occasions without harm. The Tribunal was not satisfied that the level of indiscriminate violence was such that the appellant could be granted humanitarian protection. They concluded that the original Tribunal had erred in Law. They remade the decision dismissing the appeal on asylum, humanitarian and human rights grounds.

Regarding legal status, the claimant was a refugee from Syria, facing persecution for political opinion.  Refugee status was determined in terms of the country of nationality, not any other country.  Had the claimant had dual or multiple nationalities, she would only have been deemed a refugee had she been unable to avail herself of the protection of all the countries of which she was a national (R v A Special Adjudicator, ex p Abudine [1995] Imm AR 60; UNHCR Handbook at 106). 

Once it was established that the claimant was a refugee, the appeal against removal to Algeria was allowable only if the removal would be in violation of Article 33 of the Refugee Convention (R v Secretary of State for the Home Department ex parte Adan and Aitsegeur [2000] UKHL 67; R (Yogathas) [2002] UKHL 36; TI v United Kingdom [2000] INLR 211).  Article 33 prohibited the return of a refugee to countries where his/her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.  Article 33 applied to any refugee, whatever the legal status of his/her presence under national law. 

In contrast, in the UK, Article 32 of the Refugee Convention applied only to refugees who had been granted leave to enter and to stay under paragraph 334 of the Immigration Rules.  Article 32 stipulated that refugees should not be expelled, except on grounds of national security or public order.  However, refugee status would not of itself entitle the claimant to a grant of asylum (Secretary of State for the Home Department v ST (Eritrea) [2010] EWCA Civ 643).  It was no part of the definition of ‘refugee’ that the subject be formally recognised as such by the grant of asylum (ZN (Afghanistan) and Ors v Entry Clearance Officer (Karachi) [2010] UKSC 21).  Thus, the claimant was not entitled to the protection of Article 32 because she had not been granted the right of lawful presence in the UK.