MM (Iran) v The Secretary of State for theHome Department

Recognition by UNHCR as a mandate refugee does not bind the Secretary of State or tribunal determining an asylum claim under the 1951 Convention Relating to the Status of Refugees. The United Kingdom’s duty is one of co-operation, not subjection to UNHCR decisions. Mandate refugee status under the UNHCR Statute is not equivalent to Convention refugee status. The recognition must nevertheless receive serious, conscientious consideration and will ordinarily carry considerable weight. A decision maker may give it less weight where cogent reasons arise from the individual case. The tribunal had carefully considered the recognition and had cogent reasons for attaching limited weight to it. There was no material error of law, and the appeal was dismissed.

The appellant, an Iranian national, had been recognised by UNHCR in Turkey as a mandate refugee. The Secretary of State refused his United Kingdom asylum claim. The Asylum and Immigration Tribunal dismissed his appeal in 2007, finding that he had not established a well-founded fear of persecution, and gave limited weight to the bare evidence of UNHCR recognition. On reconsideration in 2009, the Tribunal held that its original determination disclosed no error of law and ordered that it stand.

The appeal concerned whether UNHCR recognition was binding, whether duties of co-operation under European Union law or the Refugee Convention required recognition of that status, and whether the Secretary of State’s policy was irrational.

1. Appeal dismissed. The Asylum and Immigration Tribunal had made no material error of law in upholding its original dismissal of the asylum appeal.
2. UNHCR recognition was not binding. The obligation on the United Kingdom under the Treaty or the 1951 Convention Relating to the Status of Refugees was an obligation to co-operate with the UNHCR, not to be bound by its individual decisions. The relationship between the UNHCR and national decision makers was not equivalent to the relationship between the European Commission and national courts where jurisdiction was concurrent. Crehan v Inntrepreneur [2007] 1 AC 333 and Delimitis v Henninger Brau [1992] 5 CMLR 210 were therefore distinguishable.
3. Mandate and Convention status were distinct. Article 6B of the Statute annexed to Resolution 428(V) was narrower than the Convention definition because it did not refer to membership of a particular social group, but wider because it included persons who had had a well-founded fear of persecution. Mandate refugee status could therefore include persons who were not Convention refugees at the time of the United Kingdom decision.
4. Weight to be given to recognition. Although not necessary to determine the appeal, the Court addressed the practical approach. UNHCR recognition should receive serious and conscientious consideration. Given the UNHCR’s expertise and responsibilities, it would ordinarily carry considerable weight, unless cogent reasons in the individual case justified otherwise. It would be equally unrealistic to give it considerable weight regardless of contrary indications or to give it less than considerable weight without good reason. This was practical guidance, not a binding procedural sequence.
5. Application. The 2007 Tribunal had recognised that the Secretary of State’s decision was flawed for failing to take the UNHCR recognition into account. It had then considered the recognition itself, alongside extensive evidence, and had cogent reasons for attaching limited weight to the bare recognition decision. The proposed irrationality challenge depended on the rejected arguments and, in any event, would have required evidence and was not a pure point of law suitable for late permission.

• Court of Appeal (Civil Division): The appeal against the Asylum and Immigration Tribunal’s 2009 reconsideration decision was dismissed: [2010] EWCA Civ 1457.
• Asylum and Immigration Tribunal: On reconsideration in 2009, the Tribunal held that the 2007 determination contained no error of law and ordered that its dismissal of the asylum appeal stand. The 2007 determination had dismissed the appeal against refusal of asylum.