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

The Supreme Court considered whether the principle of equivalence under EU law required that an appeal right be available against a domestic decision refusing humanitarian protection (subsidiary protection) where an appeal exists against refusal of asylum under section 83 of the Nationality, Immigration and Asylum Act 2002. The court analysed the interaction between member states' procedural autonomy and the EU-law qualifications of the principle of equivalence and the principle of effectiveness, concluding that effectiveness was not in issue but that important questions of equivalence and comparability remained.

The court identified three material legal questions that needed resolution: (i) whether a national comparator relied on for equivalence must be a measure of purely domestic origin, (ii) what degree of similarity or "juristic structure" is required between the EU-law right and the comparator for the equivalence principle to apply, and (iii) the legal source and nature of the procedural rights attaching to an asylum claim as opposed to subsidiary protection. Because these questions were not settled by existing Court of Justice of the European Union case law, the Supreme Court concluded a preliminary reference under Article 267 TFEU was required.

Background and facts:

• FA is an Iraqi national who arrived in the United Kingdom unaccompanied at age 15 and sought asylum. The Secretary of State refused asylum on credibility grounds on 9 October 2007, refused humanitarian protection, but granted limited discretionary leave until FA was seventeen and a half years old.
• FA appealed under section 83 of the Nationality, Immigration and Asylum Act 2002 against the refusal of asylum; he also raised Convention rights (articles 2, 3 and 5) and argued he might suffer serious harm under the Qualification Directive (subsidiary protection). The Immigration Judge dismissed the appeal on asylum and humanitarian protection grounds. Reconsideration proceedings led a Senior Immigration Judge to require reconsideration of whether there was a risk of "serious and individual threat" within the Qualification Directive; the Asylum and Immigration Tribunal (two Immigration Judges) then held that the only appeal properly available under section 83 was against asylum refusal and substituted a dismissal on asylum grounds only.

Procedural posture:

• The Court of Appeal accepted an argument based on the principle of equivalence and held that the definition of "asylum claim" and the grounds of appeal had to be read so as to include claims under the Qualification Directive (subsidiary protection), thereby providing an appeal. The Secretary of State appealed to the Supreme Court.

Nature of the application and issues framed:

• FA sought recognition that the absence of an appeal against humanitarian protection decisions was incompatible with the principle of equivalence under EU law. The Secretary of State contended that no appropriate purely domestic comparator existed because both asylum and subsidiary protection claims derive from Chapter VII of the Qualification Directive and that, in any event, the human-rights (ECHR) comparator was closer.
• The principal issues identified and framed by the Supreme Court were whether the comparator relied upon for equivalence must be purely domestic in origin; what degree of similarity (including consideration of juristic structure, purpose and essential characteristics) is required between the EU right and any comparator; and the source and character of procedural rights attached to an asylum claim as opposed to subsidiary protection.

Court’s reasoning and conclusion:

• The court reviewed the Councils and Court of Justice jurisprudence on procedural autonomy, the principles of effectiveness and equivalence (including Rewe I, Levez, Palmisani and subsequent decisions), and relevant domestic authorities (including Matra, Preston, Byrne and Stringer). It concluded that the equivalence question required an assessment of whether the domestic comparator is sufficiently similar in purpose and essential characteristics, but that the precise tests and the extent to which a comparator must be exclusively domestic were not definitively settled by the Court of Justice.
• Because these issues give rise to questions of EU law that the Supreme Court considered necessary to resolve before determining the appeal, the court decided to refer questions to the Court of Justice of the European Union under Article 267 TFEU and invited written submissions from the parties within 28 days on the questions to be referred.

Wider implications:

• The court emphasised the limits of member-state procedural autonomy where EU rights are concerned and the complementary operation of the principles of effectiveness and equivalence, noting that equivalence is intended to prevent less favourable treatment of EU-derived rights compared with comparable domestic rights. The court did not finally rule on whether FA was entitled to an appeal against the refusal of humanitarian protection but instead sought a preliminary ruling on the controlling legal questions from the Court of Justice.

Appeal allowed in part: the Supreme Court held that unresolved questions of EU law concerning the scope and application of the principle of equivalence (in particular whether a comparator must be purely domestic, the required degree of similarity between rights, and the source of procedural rights attaching to asylum claims) required a preliminary ruling from the Court of Justice under Article 267 TFEU. The court did not determine the substantive appeal but referred questions to the Court of Justice and invited submissions on the questions to be referred.

On appeal from the Court of Appeal, Civil Division, [2010] EWCA Civ 696, which had accepted that the principle of equivalence required that domestic appeal rights be extended to cover decisions on humanitarian/subsidiary protection. The Secretary of State appealed to the Supreme Court, which issued a reference for a preliminary ruling to the Court of Justice of the European Union under Article 267 TFEU.