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

A stateless person does not become a refugee merely because return to the country of former habitual residence is denied. The claimant must establish a well-founded fear of persecution for a Convention reason, rather than discrimination alone.

Under Refugee or Persons in Need of International Protection (Qualification) Regulations 2006, an act must be a severe violation of a non-derogable basic right. The expression “in particular” in paragraph 5(1)(a) exhaustively identifies those rights. On the facts, likely refusal of entry without the relevant travel documents did not establish racial persecution. The court was bound by [2008] EWCA Civ 304.

The appellant was a stateless Palestinian from the West Bank. She appealed from a reconsideration by a Senior Immigration Judge of the Asylum and Immigration Tribunal, who had rejected her contention that exclusion from the West Bank would amount to persecution.

Her asylum account included a claimed fear of Hamas. She also asserted that Israel would refuse her re-entry if she were forcibly removed without the necessary documents. The appeal raised the same issue as a companion appeal: whether the Court of Appeal was bound by its earlier decision in MA that denial of return to a stateless person’s country of former habitual residence did not itself confer refugee status.

1. Appeal dismissed unanimously. Scott Baker LJ held that the appellant had not established a real possibility that Israel would refuse her entry to the West Bank for a Convention reason. The available evidence suggested that admission depended on possession of the relevant travel documentation, not on her Palestinian race.

2. The court was bound by MA (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 304. Its ratio was that refusal of re-entry to a stateless person’s country of former habitual residence did not amount, without more, to persecution. The appellant’s reliance on race did not distinguish her case, because the relevant persons in MA, the companion case and this appeal were all stateless Palestinians from the West Bank.

3. Refugee status under Article 1(A)(2) of the 1951 Geneva Convention relating to the status of refugees required a well-founded fear of persecution for a Convention reason. Mere statelessness was insufficient. The appellant had neither established racially motivated refusal of entry nor conduct reaching the requisite persecution threshold.

4. In any event, paragraph 5(1)(a) of the Refugee or Persons in Need of International Protection (Qualification) Regulations 2006 confined “basic human rights” to the non-derogable rights identified by Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Although discriminatory treatment may in some circumstances amount to degrading treatment contrary to Article 3, denial of re-entry alone on these facts was not a severe violation of that right.

5. Whether the appellant positively wished to return would not alter the result. MA had not decided the issue on the basis that its claimant was unwilling to return, and the binding principle remained determinative. Wilson and Wall LJJ agreed.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal in [2008] EWCA Civ 1150.

• Asylum and Immigration Tribunal: Senior Immigration Judge Perkins, on a reconsideration promulgated on 28 November 2007, rejected the contention that loss of a right of return to the West Bank amounted to persecution.

• High Court: Dobbs J ordered the reconsideration.

• Immigration Judge: dismissed the appellant’s asylum appeal.