FA (Iraq) v Secretary of State for the Home Department

The EU principle of equivalence requires a person refused subsidiary protection under the Qualification Directive to have the same recourse to an independent tribunal as a person refused refugee status. The two forms of international protection are sufficiently similar in their status, purpose and associated rights.

Accordingly, the statutory appeal available under section 83 of the Nationality, Immigration and Asylum Act 2002 must be read as extending to refusal of subsidiary or humanitarian protection. Without the Directive, section 84(3) would confine such an appeal to Refugee Convention grounds.

The appellant, an unaccompanied minor from Iraq, claimed asylum. The Secretary of State refused both asylum and humanitarian protection but granted him discretionary leave for more than one year. An immigration judge initially dismissed his appeal on both grounds. Reconsideration was ordered because the judge appeared not to have assessed serious harm under the Qualification Directive and paragraph 339C of the Immigration Rules.

On reconsideration, the Asylum and Immigration Tribunal held that section 83 of the Nationality, Immigration and Asylum Act 2002 confined the appeal to asylum. The appellant appealed. The central issue was whether the EU principle of equivalence required section 83 to permit an appeal against refusal of subsidiary or humanitarian protection.

1. Appeal allowed. The First-tier Tribunal was directed to hear the appeal against refusal of humanitarian protection, meaning subsidiary protection under the Qualification Directive.
2. As a matter of domestic statutory construction alone, section 83 of the Nationality, Immigration and Asylum Act 2002 creates a restricted status appeal. Section 84(3), by requiring such an appeal to be brought on Refugee Convention grounds, means that it must be brought only on those grounds. Human-rights and humanitarian-protection grounds would therefore ordinarily await an appeal against an immigration decision under section 82, subject meanwhile to judicial review.
3. The Qualification Directive was directly applicable. Following Elgafaji, Article 15(c) covers a form of serious harm arising from indiscriminate violence that is wider than Articles 2 and 3 of the European Convention on Human Rights. Subsidiary protection therefore could not be treated merely as duplicating Convention protection.
4. The relevant comparison for the EU principle of equivalence was between subsidiary protection and refugee protection. It was not between the Directive right and the self-same humanitarian protection reflected in the Immigration Rules. Refugee status and subsidiary-protection status are species of international protection with sufficiently similar purposes, status and associated rights. Those similarities include rights concerning residence, employment, education, social welfare and family reunion.
5. National law therefore had to provide a person refused subsidiary protection with the same recourse to an independent tribunal as a person refused refugee status. Section 83 had to be read as applying to a claim under the Qualification Directive. Longmore LJ expressed the required adjustment as adding a reference to Directive 2004/83/EC to the statutory definition of “asylum claim” and to section 84(3). Pill and Sullivan LJJ agreed with the result and reasoning.

1. Court of Appeal (Civil Division): The appeal was allowed. The First-tier Tribunal was directed to hear the appeal against refusal of humanitarian protection.
2. Asylum and Immigration Tribunal: Immigration Judges Lobo and Cohen held on reconsideration that section 83 of the Nationality, Immigration and Asylum Act 2002 confined the appeal to asylum and excluded humanitarian-protection and human-rights grounds.
3. Reconsideration stage: Senior Immigration Judge Mather ordered reconsideration because the original determination appeared not to address serious harm under the Qualification Directive and paragraph 339C of the Immigration Rules.
4. Initial appeal: Immigration Judge Jhirad dismissed the appeal on asylum and humanitarian-protection grounds.