Cuong Van Dang v The Secretary of State for the Home Department

A revocation or non-renewal under paragraph 339A of the Immigration Rules affects only the asylum status granted under Council Directive 2004/83/EC. It does not remove a person’s objectively existing status as a refugee under the Refugee Convention.

Paragraph 339A can operate only where the asylum application was made on or after 21 October 2004 and one of sub-paragraphs (i) to (vi) applies. A past grant or recognition of refugee status creates no legal or evidential presumption that removal would breach Article 3. The Article 3 inquiry is an ex nunc, forward-looking assessment of whether there is a real risk at the hearing date.

The appellant, a Vietnamese national granted refugee status as a child through his father, appealed against a deportation order made following convictions for murder and wounding with intent to cause grievous bodily harm. The First-tier Tribunal dismissed his appeal.

It found that he was a danger to the community for the purposes of Article 33(2) of the Refugee Convention and section 72 of the Nationality, Immigration and Asylum Act 2002. It also treated paragraph 339A(x) of the Immigration Rules as revoking his refugee status, and found that return to Vietnam would not breach Article 3 or Article 8.

The Upper Tribunal considered whether paragraph 339A could revoke Convention refugee status and whether continuing Convention refugee status created a presumption of an Article 3 risk on removal.

1. Appeal dismissed. The First-tier Tribunal made errors of law, but they were immaterial to the result. Its decision was set aside and the Upper Tribunal re-made the decision by dismissing the appeal.

2. The Refugee Convention defines a refugee by objective criteria. Recognition declares that status; it does not create it. By contrast, Council Directive 2004/83/EC requires Member States to grant a defined European refugee status and issue a residence permit. Article 14 of the Directive and paragraph 339A therefore concern the status granted under that scheme, not the person’s Convention status.

3. Section 2 of the Asylum and Immigration Appeals Act 1993 prevents the Immigration Rules from authorising a practice contrary to the Refugee Convention. Paragraph 339A was construed so that revocation or non-renewal can apply only to applications made on or after 21 October 2004 and only where one of sub-paragraphs (i) to (vi) applies. The appellant’s earlier recognition meant that he had never acquired European refugee status capable of revocation under paragraph 339A(x).

4. The appellant nevertheless remained removable under Article 33(2) because the unchallenged finding that he had committed a particularly serious crime and was a danger to the community excluded Refugee Convention protection against refoulement.

5. There is no presumption that a person who remains a Convention refugee faces Article 3 ill-treatment on return. Earlier refugee recognition may illuminate present risk, but the tribunal must decide, at the date of the proceedings, whether substantial grounds establish a real and foreseeable Article 3 risk. On the unchallenged findings, the appellant had not established such a risk in Vietnam.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal only to the extent of identifying material errors of law, set aside the First-tier Tribunal’s determination, and re-made the decision by dismissing the appeal.
• First-tier Tribunal: Dismissed the appellant’s appeal against the deportation order. Its determination citation was not stated in the judgment.