Secretary of State for the Home Department v ST (Eritrea)

Article 32 of the Refugee Convention protects only a refugee granted leave to enter and remain, or another right of lawful residence, in the state concerned. Temporary admission, or entry solely to investigate an asylum claim, does not suffice. Article 33 protects refugees against removal to a territory where persecution threatens their life or freedom, irrespective of the domestic lawfulness of their presence. Recognition as a refugee is distinct from a grant of asylum. Under paragraph 334 of the Immigration Rules, the additional removal-risk condition must be satisfied. An appeal against removal directions may establish protection under Article 33 without directing the grant of asylum.

T, an Eritrean national who had lived in Ethiopia, claimed asylum in the United Kingdom. An Adjudicator found that she faced persecution in Eritrea but could safely return to Ethiopia. The Asylum and Immigration Tribunal allowed her appeal on asylum and human-rights grounds after identifying an error in the Adjudicator’s determination.

The Secretary of State later issued removal directions to Ethiopia and refused to recognise T as a refugee or grant asylum. The Administrative Court, in [2008] EWHC 3162 (Admin), quashed that decision and ordered recognition of refugee status and the grant of leave. The Secretary of State appealed. The central issues were whether refugee recognition or temporary admission engaged Article 32, and whether the Tribunal’s decision itself required the grant of asylum.

1. Appeal allowed. The order of the Administrative Court was set aside. T’s appeal against removal directions to Ethiopia remained to be determined by the Tribunal.
2. Article 32 of the Refugee Convention applies only to a refugee who has been granted leave to enter and stay, or otherwise a right of lawful residence, in the state concerned. Whether presence is lawful is determined by domestic law. Temporary admission, or admission solely to investigate and determine an asylum claim, does not engage Article 32. Article 33 protects every refugee against return to a territory where persecution threatens life or freedom, whatever the domestic status of the refugee’s presence.
3. The Court followed the reasoning in R v Home Secretary ex parte Bugdaycay (Re Musisi) [1987] 1 AC 514 and agreed with the interpretation of JA (Ivory Coast) and ES (Tanzania) v Secretary of State for the Home Department [2009] EWCA Civ 1353. It declined to follow the interpretation of Article 32 in Szoma v Secretary of State for Work and Pensions [2005] UKHL 64, treating that decision as binding only on the social-security meaning of lawful presence and not on refugee irremovability under Article 32.
4. Recognition of refugee status does not itself confer Article 32 protection or entitle a person to asylum. Paragraph 334 of the Immigration Rules requires the additional condition that refusal of asylum would require removal to a country where the refugee’s life or freedom would be threatened. The Tribunal’s decision was made under section 82 of the Nationality, Immigration and Asylum Act 2002, not section 83. Read as a whole, it allowed T’s appeal because removal to Eritrea would breach Article 33 and Article 3 of the European Convention on Human Rights. It did not direct the Secretary of State to grant asylum under section 87.

• Court of Appeal (Civil Division): [2010] EWCA Civ 643. Appeal allowed and the Administrative Court’s order set aside.
• Administrative Court, Queen’s Bench Division: [2008] EWHC 3162 (Admin). The Secretary of State’s decision was quashed, with orders to recognise T as a refugee and grant leave to remain.