New Country Guidance case on return to Gaza

HS (Palestinian - return to Gaza) Palestinian Territories CG [2011] UKUT 124 (IAC) (11 April 2011)

This is a country guidance case heard at the Upper Tribunal. The appellant is a female, stateless Palestinian from the Gaza Strip. She arrived in the UK in September 2003 with her husband and children.  Her husband was granted limited leave to remain until January 2009 in order to undertake PhD studies and the appellant and her children were granted leave in line with him as his dependants. Due to financial circumstances, the appellant and her children returned to Egypt from where they tried to enter Gaza but were unable to enter. Therefore, they returned to the UK and the appellant applied for asylum in March 2008. This was refused and the appellant appealed against the decision of the Secretary of State for the Home Department (herein after referred to as the SSHD).

The appellants appeal was heard in October 2008. The Immigration Judge presiding in her case did not accept that the appellant was stateless. Instead, he found her to be a national of the Palestinian Authorities as she had been habitually resident in the area controlled by them.  Further, she had not left Gaza on account of any problems, political or otherwise. The Immigration Judge did not accept that the situation was so severe so as to warrant any merit for asylum.  The Judge noted that the appellant had chosen to give birth in Ireland as she had been informed that in so doing, the child would acquire Irish nationality.

The appellant’s husband gave evidence arguing that he was not prepared to leave the UK which the Judge found lacked credibility. The Judge also dismissed claims of breach of article 8 (right to a private and family life) under the ECHR and dismissed the appeal under article 3 and the Refugee Convention.

The appellant sought reconsideration arguing that the Judge’s findings were flawed. Reconsideration was ordered on the basis that the Judge had arguably erred in concluding that the appellant did not face a risk of persecution if returned to the Gaza strip and that humanitarian protection and article 8 could be argued.

In April 2009, a senior Immigration Judge concluded that there had been a material error of law and a re-hearing was ordered. Hearings took place in December 2009 and in February 2010. Dr Alan George was the country expert who gave evidence in this case.

Considerations and Conclusions in the case

The Upper Tribunal decided that:

1.       The Tribunal applied the cases of GH [2005] EWCA Civ 1182 and HH (Somalia) [2010] EWCA Civ 426 and found that they have jurisdiction to consider practical issues concerning the return of a Palestinian family to Gaza

2.       Palestinians from the Gaza strip who have passports (even if expired as these can be renewed fairly easily), are not likely to experience problems in obtaining visas from the Egyptian authorities to enter Egypt and cross into Gaza via the Rafah crossing

3.       The conditions likely to be experienced by Palestinians in Egypt while awaiting crossing into Gaza are not such as to give rise to a breach of their human rights

4.       In light of the authorities: MA [2008] Imm AR 617; MT [2009] Imm AR 290 and SH [2009] Imm AR 306, it would not be a breach of their human rights for Palestinians to be refused entry to Gaza

5.       The Tribunal held that it does not have jurisdiction to decide whether Israel acted in breach of international law in respect of its treatment of Palestinians within the Occupied Palestinian Territories

6.       The conditions in Gaza are not such as to amount to persecution or breach of human rights of returnees or place them in need of international protection

Article 8 consideration

The Upper Tribunal concluded that, in light of the credibility findings made in respect of the husband and other factors, there would be no interference with their article 8 rights. The Tribunal concluded that the appellant and her family can be able to re-enter Gaza and that she had not been refused entry to Gaza previously at any time. The Tribunal stated that “The existence of practical difficulties in returning does not amount to a breach of her or her family’s right to respect for their private life”.

The appeal was accordingly, dismissed.

April 2011