AA & Anor v LK & Anor

A person who can return voluntarily in safety to the country of nationality falls outside the Refugee Convention definition, even if enforced removal would expose that person to persecution. The fear of persecution must cause the person to be outside that country. Tribunals must distinguish failed asylum-seekers from other involuntary returnees and must confront countervailing evidence in a finely balanced risk case. Refugee status ordinarily does not depend on a present risk of removal. Exceptionally, however, status may depend on particular removal procedures where those procedures provide the entire basis for the claim and have been suspended.

The Secretary of State appealed two determinations of the Asylum and Immigration Tribunal. In AA, the AIT held that the process used for involuntary returns to Zimbabwe exposed rejected asylum-seekers to persecution and treatment contrary to Article 3. In LK, the AIT upheld refugee status based on sexual orientation and additionally treated her as a refugee on the AA country-guidance basis, despite the suspension of returns. The Court of Appeal considered evidential errors, the scope of a concession, whether safe voluntary return defeats refugee status, and whether suspension removed the basis for the AA country-guidance status.

1. AA: errors of law. The court held that the AIT materially misunderstood the evidence. In a finely balanced case, it was wrong to say that the evidence from individual returnees all pointed one way while overlooking evidence of persons who had not suffered serious mistreatment. It was also wrong to ignore the Secretary of State’s evidence about cases that did not reach the Article 3 threshold. The AIT further misapplied a concession limited to failed asylum-seekers by applying it to all involuntary returnees. The relevant categories had to be distinguished and the sources of any risk separately assessed.
2. New point on appeal. The AIT was conducting a reconsideration under transitional provisions inserted into the Nationality Immigration and Asylum Act 2002 by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. Its jurisdiction could extend to review of the whole case. The restricted approach applicable to the former IAT did not automatically apply. The Court of Appeal could entertain the Secretary of State’s new point because it was just and right to do so, subject to procedural requirements and absence of prejudice.
3. Refugee status. Article 1A(2) contains a causative requirement: a well-founded fear of persecution must be the reason why the person is outside the country of nationality. Accordingly, a person who could return there voluntarily in safety is not a refugee merely because enforced removal would create a risk. Neither section 84(1)(g) of the Nationality Immigration and Asylum Act 2002 nor Article 33 enlarges that definition. In section 84(1)(g), removal means enforced removal pursuant to directions.
4. Authorities and factual safety. Danian [2000] Imm AR 96 was distinguishable because the risk there would have existed on voluntary or enforced return. The court did not decide whether safe voluntary return would also exclude protection under Article 3, since the Secretary of State did not pursue that argument. Nor could it conclude that AA would necessarily be safe after voluntary return, because the risks after leaving Harare Airport had not been investigated.
5. LK. The AIT misunderstood the Secretary of State’s case. He did not argue that refugee status generally depends on a present threat of removal; Saad [2002] INLR 34 showed otherwise. His argument was that LK’s additional status arose entirely from the removal procedures considered in AA, and that suspension of those procedures removed its basis. The AIT was therefore wrong to uphold refugee status on the AA basis. The court would allow both appeals in principle, with further argument on the appropriate relief.

1. Court of Appeal (Civil Division): Allowed the Secretary of State’s appeals in principle, subject to further argument on relief.
2. Asylum and Immigration Tribunal: In AA, the AIT allowed the claim on the basis of risks arising from involuntary return to Zimbabwe: [2005] UKAIT 001144 CG. In LK, it refused reconsideration on her independent protection grounds but additionally upheld refugee status on the AA basis: [2005] UKAIT 00159.