Hariri v Secretary of State for the Home Department

Where a protection claim depends entirely on a risk said to affect a general class, the conventional test remains whether there is a reasonable degree of likelihood of relevant ill-treatment. This means a real, rather than fanciful, risk and does not require proof on the balance of probabilities.

In the absence of any individual feature generating risk, that test requires evidence that the relevant ill-treatment generally or consistently occurs to members of the class. Requiring a consistent pattern of gross and systematic human-rights violations is therefore an application of the real-risk standard, rather than a higher standard of proof. Evidence that ill-treatment is merely routine or frequent does not suffice.

The appellant, a Syrian national, sought asylum and protection under Article 3 of the European Convention on Human Rights. He alleged that he would be imprisoned and tortured following his objection to further military service and his unauthorised departure from Syria.

The Secretary of State refused leave to enter. An adjudicator dismissed the ensuing appeal, and the Immigration Appeal Tribunal upheld that decision. The Tribunal found no individual circumstances placing the appellant at real risk and insufficient evidence that ordinary returning draft evaders or unauthorised emigrants were generally subjected to persecution or prohibited ill-treatment.

Permission to appeal was confined to whether the Tribunal had imposed an unlawfully elevated standard by requiring evidence of a consistent pattern of gross and systematic violations of fundamental human rights.

1. Appeal dismissed unanimously. Laws LJ delivered the judgment, with which Arden and Mummery LJJ agreed. The Immigration Appeal Tribunal had not misdirected itself in law.

2. The standard established in Sivakumaran [1988] 1 AC 958 is a reasonable degree of likelihood of relevant ill-treatment. It requires a real, rather than fanciful, risk. The perceived incidence of the risk may be considerably below a probability of 51 per cent. The same standard applies to both refugee claims and claims under Article 3 of the European Convention on Human Rights.

3. The appellant's challenges based on his individual circumstances were no longer before the court. His remaining case depended entirely upon the risk allegedly faced by returning members of two general classes: draft evaders and persons who had left Syria without authority.

4. Where no personal circumstance generates the alleged risk, a claimant cannot establish a real risk affecting a class without evidence that the relevant ill-treatment generally or consistently occurs to members of that class. In that setting, the requirement for a consistent pattern of gross and systematic violations of fundamental rights is a logical application of the real-risk test. It does not impose a different or more demanding legal standard. The fact that ill-treatment or misconduct may be routine or frequent is insufficient.

5. The Tribunal's approach in Muzafar Iqbal [2002] UKIAT 02239, particularly its treatment of claims resting on general rather than personal risk, reflected that logic. The historical origin of the expression in Article 3(2) of the United Nations Convention Against Torture did not determine whether the Tribunal could employ it. The Court expressed no view on the suggested differences between that Convention, the Refugee Convention and the European Convention.

6. The Court dismissed the appeal, made a section 11 order, directed a detailed assessment and refused permission to appeal to the House of Lords.

1. Court of Appeal (Civil Division): Dismissed the appeal from the Immigration Appeal Tribunal. It upheld the Tribunal's application of the real-risk standard and refused permission to appeal to the House of Lords.
2. Immigration Appeal Tribunal: By a determination notified on 7 August 2002, dismissed the appeal from the adjudicator. It found neither an individual real risk nor sufficient evidence of general persecution or ill-treatment affecting ordinary returning draft evaders or unauthorised emigrants.
3. Adjudicator: Dismissed the appeal against the Secretary of State's decision. The adjudicator accepted parts of the account concerning further military service but rejected material embellishments and found no real risk of prohibited treatment.
4. Secretary of State: Refused the appellant leave to enter as a refugee and rejected the claim that return to Syria would expose him to treatment contrary to Article 3 of the European Convention on Human Rights.