The Secretary of State for the Home Department v RR

A finding that a person is a refugee does not itself entitle that person to asylum. Article 32 of the Refugee Convention protects only a refugee lawfully present under domestic law, whereas Article 33 protects refugees irrespective of that status.

Where a claimant has one nationality and more than one proposed destination, the tribunal must first decide whether the claimant is a refugee in the country of nationality. If so, it must allow the appeal if removal to the proposed third country would expose the claimant to refoulement, including indirect refoulement. A tribunal need not consider a possible destination not specified in the decision under appeal.

The Secretary of State appealed against an Immigration Judge’s decision allowing RR’s appeal on asylum, humanitarian protection and Article 3 grounds. RR was a Syrian national with an accepted well-founded fear of persecution in Syria. During the proceedings, the Secretary of State proposed Algeria, rather than Syria, as the intended destination.

The Tribunal had already held that the Immigration Judge materially erred by placing the burden of proving entry to Algeria on the Secretary of State and by treating travel documentation as material to the hypothetical removal issue. On remaking the decision, the central question was whether Algeria was a safe third country or whether removal there would expose RR to indirect refoulement to Syria.

1. The claimant’s appeal was allowed on asylum and Article 3 grounds. The Immigration Judge had materially erred in law, but the remade decision was that removal to Algeria would breach Article 33(1) of the Refugee Convention and Article 3 of the European Convention on Human Rights.

2. Applying Secretary of State for the Home Department v ST (Eritrea) [2010] EWCA Civ 643, the Tribunal held that a finding that a claimant is a refugee does not itself require a grant of asylum. Article 32(1) protects only a refugee granted leave to enter and remain in accordance with paragraph 334 of the Immigration Rules. Article 33 protection is not similarly confined.

3. In a case involving a claimant with one nationality, the Secretary of State may propose more than one removal destination. The tribunal must determine refugee status by reference to the country of nationality. If the claimant is a refugee from that country, the appeal is allowed only where return to the proposed third country would contravene Article 33. Conversely, where only the persecuting country has been proposed, an immigration judge should not dismiss the appeal because another country may be safe.

4. Article 33 prohibits both direct and indirect refoulement. The evidence established a real risk that Algeria would hand RR over to Syria. Her father’s political history, Syria’s treatment of relatives of dissidents, her use of false passports, evidence of Syrian intelligence activity, Algeria’s refugee record, and evidence of co-operation between Algeria and Syria on security matters cumulatively showed that Algeria was not safe for her.

5. The Tribunal also confirmed that, in determining the statutory removal ground, the inquiry proceeds on the assumption of return. The availability of travel documentation is for the later stage when actual removal directions are issued.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State obtained reconsideration after the Immigration Judge’s determination of 25 July 2008. The Tribunal found material errors of law and remade the decision, allowing RR’s appeal on asylum and Article 3 grounds.
• Immigration Judge: Allowed the appeal on asylum, humanitarian protection and Article 3 grounds after finding RR to be a refugee from Syria with no prospect of protection elsewhere.