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

A stateless person facing return to a country of former habitual residence receives the protection of the Refugee Convention and the ECHR. However, the anticipated denial of re-entry does not, without more, amount to persecution or treatment contrary to article 3. A stateless person has no right of entry equivalent to a national’s right to enter the country of nationality.

At first-stage reconsideration, the Asylum and Immigration Tribunal must find an actual material error of law. Where the error consists of logically inconsistent findings, it may leave until the second stage the question which finding should stand.

The appellant was a stateless Palestinian Arab formerly resident in the West Bank. The Secretary of State refused his asylum and human rights claims. An adjudicator dismissed the asylum appeal but allowed the appeal under article 3 of the ECHR because of the treatment anticipated in the West Bank.

After transitional arrangements transferred the proceedings to the Asylum and Immigration Tribunal, it found an error of law and reconsidered the case. It held that the appellant would probably be denied entry at the King Hussein Bridge and returned to Jordan, where the evidence did not establish persecution or prohibited ill-treatment. It also rejected the claims on the hypothetical basis that he entered the West Bank.

The appeal concerned the Tribunal’s jurisdiction to reconsider the case and whether denial of re-entry to a stateless person was inherently persecutory or contrary to article 3.

1. Disposition. The appeal was dismissed. Permission to appeal on the renewed additional grounds was refused. Lawrence Collins LJ and Sir William Aldous agreed with Maurice Kay LJ.
2. The Secretary of State’s original grounds, fairly and reasonably construed, disclosed a point of law. They asserted that the adjudicator had failed to apply the required minimum severity threshold and had reached a conclusion unsupported by the evidence. Grounds in asylum proceedings should receive a fair and reasonable examination rather than an unduly stringent construction.
3. Under rule 31(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, an arguable error alone would not permit second-stage reconsideration. Read as a whole, however, the Tribunal’s decision found an actual material error. The adjudicator had made logically inconsistent findings about degrading treatment, persecution, torture and inhuman treatment, although the same minimum severity threshold applied. The Tribunal could leave until the second stage the question which finding was sustainable.
4. A stateless person facing return to a country of former habitual residence enjoys the protection of the Refugee Convention and the ECHR. Nevertheless, denial of re-entry is not inherently persecution or treatment contrary to article 3. Unlike a national, a stateless person has no corresponding right of entry which the exclusion removes. Denial of a right never enjoyed does not, without more, constitute persecution. The Tribunal therefore made no error on this issue.
5. The uncontradicted country guidance supported the finding that, after exclusion at the bridge, the appellant would return to Jordan without facing persecution or prohibited ill-treatment there. The uncertain practical arrangements for removal did not undermine that finding.
6. Sections 84, 85 and 86 of the Nationality, Immigration and Asylum Act 2002 required the Tribunal to consider conditions in the West Bank despite its primary finding that entry would be refused. Its cumulative assessment of travel restrictions, checkpoints, economic conditions, food insecurity and healthcare disclosed no arguable material error. It used the correct standard of a reasonable degree of likelihood or real risk and was entitled to give reduced weight to evidence for which it supplied adequate reasons.
7. Lawrence Collins LJ added that broader questions of international and humanitarian law arising from the historical causes of West Bank statelessness did not fall for decision without full argument.

1. Court of Appeal (Civil Division): The appeal was dismissed and permission on the renewed additional grounds was refused: [2008] EWCA Civ 304.
2. Asylum and Immigration Tribunal, second-stage reconsideration: By a determination promulgated on 8 February 2007, the Tribunal dismissed the claims under the Refugee Convention, the Immigration Rules and the ECHR.
3. Asylum and Immigration Tribunal, first-stage reconsideration: On 17 March 2006, the Tribunal found an error of law in the adjudicator’s determination and ordered second-stage reconsideration.
4. Adjudicator: On 16 April 2004, the adjudicator dismissed the asylum appeal but allowed the human rights appeal under article 3 of the ECHR.