Ibrahim Said v The Secretary of State for the Home Department

Article 12(1)(a) of the Refugee Qualification Directive incorporates the autonomous meaning of article 1D of the Refugee Convention. A CJEU ruling on that provision is therefore a ruling on article 1D’s meaning.

Following Bolbol v Bevándorlási és Állampolgársági Hivatal, the temporal interpretation in El-Ali could not be applied. A stateless Palestinian formerly receiving UNRWA assistance may obtain the Convention’s benefits where assistance ceased through external circumstances beyond that person’s control. This protection prevents removal, although it does not necessarily establish refugee status under article 1A(2).

The appellant was a stateless Palestinian whose former habitual residence was Lebanon. He appealed against refusal of leave to enter. The First-tier Tribunal had dismissed his appeal, relying substantially on an earlier determination which rejected the credibility of his claimed particular risk from Fatah al-Islam.

The earlier determination had treated article 1D of the Refugee Convention as not excluding him, but had decided that he was not a refugee under article 1A(2). Before the Upper Tribunal, the appellant contended that evacuation and destruction of Naher al-Bared camp had involuntarily displaced him from UNRWA assistance and entitled him to the Convention’s benefits under article 1D. The issue was the effect of Bolbol v Bevándorlási és Állampolgársági Hivatal on the approach in El-Ali.

1. Appeal allowed. The Tribunal re-made the decision and held that the appellant was entitled to the benefits of the Refugee Convention. This prevented his removal, but did not itself decide that he was a refugee within article 1A(2).

2. Article 12(1)(a) of the Refugee Qualification Directive 2004/83/EC expressly refers to article 1D of the Refugee Convention. Community law therefore looks outside itself for article 1D’s meaning. A CJEU ruling on article 12(1)(a) is also a ruling on article 1D’s autonomous meaning and appears to bind national courts in Member States.

3. Bolbol v Bevándorlási és Állampolgársági Hivatal rejected the temporal construction in El-Ali, which confined article 1D to Palestinians receiving UNRWA assistance when the 1951 Convention entered into force. The Tribunal held that Bolbol clearly overruled that part of El-Ali, and that the Immigration Judge had erred in applying it.

4. The Tribunal treated the Advocate General’s analysis in Bolbol as deserving respect. On that analysis, a Palestinian who can no longer obtain UNRWA protection or assistance because of external circumstances beyond his or her control has an automatic right to refugee status. A person whose own actions caused the cessation must instead be assessed under article 1A. On the preserved facts, destruction and evacuation of the camp amounted to involuntary displacement. The appellant therefore obtained the Convention’s benefits.

5. Because pending CJEU references might show that this approach was mistaken, time to seek permission to appeal to the Inner House was extended until two weeks after publication of the decision in Case C-364/11.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal and re-made the refusal-of-leave-to-enter decision on Refugee Convention grounds.
• First-tier Tribunal: Judge Scobbie dismissed the appeal, relying substantially on earlier credibility findings.
• Asylum and Immigration Tribunal: Immigration Judge Forbes dismissed the appellant’s 2007 asylum appeal. Reconsideration was refused.