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

Where EU law does not prescribe a remedy, member states retain procedural autonomy, subject to the principles of effectiveness and equivalence. Equivalence requires national procedural rules for enforcing EU rights to be no less favourable than those governing comparable domestic actions.

Comparability depends on context and requires examination of the purpose, essential characteristics, procedural role and, where relevant, juristic structure of the claims. The court requested a preliminary ruling because EU authority had not resolved whether the comparator must be purely domestic, whether a right of mixed EU and national origin can qualify, or how similarity should be assessed in this context.

An unaccompanied Iraqi minor was refused asylum and humanitarian protection but received limited discretionary leave. He appealed under section 83 of the Nationality, Immigration and Asylum Act 2002. The immigration tribunal ultimately held that this appeal could address asylum only, not humanitarian protection or human rights grounds.

The Court of Appeal, [2010] EWCA Civ 696, held that the EU principle of equivalence required a right of appeal against the humanitarian-protection refusal. It expanded the statutory definitions accordingly. The Secretary of State appealed.

The central questions were whether an asylum claim could be a comparator for an EU-derived humanitarian-protection claim, whether a comparator must derive wholly from domestic law, and how closely the claims must resemble one another.

1. Disposition. The Supreme Court did not finally determine the Secretary of State’s appeal. Lord Kerr, delivering the judgment of the Panel, held that several unresolved questions of EU law required a preliminary ruling under article 267 of the Treaty on the Functioning of the European Union. The parties were invited to submit proposed questions in writing within 28 days.

2. In the absence of an EU rule prescribing a particular remedy, member states determine the competent courts and the procedural conditions for enforcing EU rights. That procedural autonomy is qualified by effectiveness and equivalence. Effectiveness was no longer disputed. Equivalence required the procedure for an EU claim to be no less favourable than that governing a comparable domestic action.

3. The humanitarian-protection claim lacked the status appeal available to an asylum claimant under section 83 of the Nationality, Immigration and Asylum Act 2002. The decisive issue was therefore whether the asylum claim was a legitimate comparator. A difference in procedure alone was insufficient; an adequate basis for comparison had to be established.

4. The authorities used several formulations for assessing similarity. These included the purpose and essential characteristics of the claims, their role within the procedure as a whole, their cause of action, and the closeness of their juristic structures. Exact identity of legal machinery was unlikely to be indispensable where the essential characteristics of the asserted rights were identical or closely similar. Conversely, similar juristic structures could strongly indicate comparability. The required degree and criteria of similarity depended on the context in which equivalence was invoked.

5. The Court of Justice had not directly determined whether the comparator must be exclusively domestic. Nor had it decided whether a claim could qualify when it had mixed EU and national sources, or when an international convention was the original source of provisions later reflected in EU legislation. These issues were material because the asylum and subsidiary-protection regimes were both affected by the Qualification Directive, while the asylum regime also reflected the Refugee Convention.

1. United Kingdom Supreme Court: On the Secretary of State’s appeal, held that a preliminary ruling from the Court of Justice was required and invited written submissions on the questions to be referred.
2. Court of Appeal: In [2010] EWCA Civ 696, held that the EU principle of equivalence required a right of appeal against refusal of humanitarian protection and expanded sections 84(3) and 113(1) of the Nationality, Immigration and Asylum Act 2002 accordingly.
3. Asylum and Immigration Tribunal: On reconsideration, held that the original section 83 appeal was confined to asylum and substituted a dismissal on asylum grounds only.
4. Immigration Judge: Dismissed the original appeal on asylum and humanitarian-protection grounds.