MT (Palestinian Territories) v Secretary of State for the Home Department

A stateless person’s exclusion from the country of former habitual residence does not, without more, constitute persecution for the purposes of the Refugee Convention. The Court of Appeal must follow its own directly applicable authority unless an exception stated in Young v Bristol Aeroplane applies. The ratio of MA (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 304 governed a stateless Palestinian’s likely refusal of re-entry to the West Bank and could not be avoided by advancing an argument that might have been developed differently in the earlier appeal. The court left open which additional circumstances, if any, might make such exclusion persecutory.

The appellant was a stateless Palestinian formerly resident in the West Bank. He claimed asylum after entering the United Kingdom with a false passport. His account of a risk of persecution by Israeli forces or Hamas was rejected as not credible.

An Immigration Judge dismissed his appeal. On reconsideration, the Asylum and Immigration Tribunal again dismissed it, relying substantially on country guidance and finding no basis to distinguish the position considered in MA (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 304.

The sole ground pursued before the Court of Appeal was that likely refusal of re-entry to the West Bank would itself be persecution for a Convention reason because the appellant was a Palestinian Arab. The central issue was whether that contention was distinguishable from, or conclusively governed by, MA.

1. Appeal dismissed. The appellant’s personal account of prospective ill-treatment in the West Bank had been disbelieved. The remaining claim was that refusal of re-entry at the King Hussein Bridge would be persecution on grounds of race.
2. The court was bound by its earlier decision in MA (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 304. Under Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718, the Court of Appeal follows its own decisions unless one of the limited exceptions applies. None did. A different way of putting an argument in the earlier case could not justify declining to follow its result.
3. MA held that denial of re-entry to a stateless person into the country of former habitual residence was not, of itself, persecution under the Refugee Convention. Its ratio covered stateless Palestinians being returned to the West Bank. The appellant and MA were materially indistinguishable: both were young stateless Palestinian men from the same area, neither had established an individual risk in the West Bank, and neither had adduced evidence that any refusal of re-entry would rest on a different or discriminatory reason.
4. The court accepted that Revenko v Secretary of State for the Home Department [2001] QB 601 establishes that statelessness alone does not confer refugee status. It left open what additional circumstances might, in another case, make refusal of re-entry persecutory. The court also declined to decide the appellant’s wider argument without current evidence about treatment at the bridge and full argument from the Secretary of State.
5. It indicated, by reference to paragraph 5 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, that the required additional circumstances would need to be in the nature of Article 3 ill-treatment. That point was not necessary to the dismissal.

• Court of Appeal (Civil Division). Dismissed the appellant’s appeal: [2008] EWCA Civ 1149.
• Asylum and Immigration Tribunal. On reconsideration, dismissed the appellant’s asylum appeal in a determination promulgated on 8 August 2007.
• Immigration Judge. Rejected the appellant’s appeal on 23 October 2006.