GP (Democratic People's Republic of Korea) & Ors, R (On the Application Of) v Secretary of State for the Home Department

For asylum under article 1A(2) of the Refugee Convention, a person who is also a national of another country must show a well-founded fear of persecution in that country before unwillingness to seek its protection can support refugee status. A strong preference for protection in the United Kingdom is insufficient. The reasonableness of requiring use of the other country’s protection procedure must be assessed against the objections and evidence. Temporary detention while nationality is investigated is not, without more, contrary to articles 3 or 33. On a second appeal, country-guidance status and pending related cases do not alone constitute a compelling reason for permission.

The First-tier Tribunal rejected the appellants’ claims to asylum and humanitarian protection. The Upper Tribunal dismissed their combined appeals on 26 August 2014 and issued amended Country Guidance concerning North Korean nationals who may obtain protection in South Korea.

The appellants sought permission for second appeals. They argued that South Korean nationality was merely theoretical, that the Protection Procedure involved unlawful detention and human-rights risks, that requiring them to use it was unreasonable, and that the Upper Tribunal had failed to consider the interests of GP’s children. The central issue was whether those objections disclosed an arguable error of law or another compelling reason to hear the appeals.

Applications for permission to appeal were refused. The cases were second appeals. The appellants had to show a reasonable prospect of success on an important point of principle or practice, or some other compelling reason for the appeals to be heard. The existence of Country Guidance and other cases awaiting the outcome did not, by itself, satisfy the latter requirement.

1. Given the common ground that North Korean citizens were also South Korean citizens under South Korean law, an applicant unwilling to seek South Korean protection had to show that the unwillingness was based on a well-founded fear of persecution there. A strong preference for protection in the United Kingdom was irrelevant. The approach was consistent with MA (Ethiopia) [2004] UKIAT 324, MA (Ethiopia) [2009] EWCA Civ 289 and Secretary of State v SP (North Korea) [2012] EWCA Civ 114. The present appellants faced none of the ten-year absence difficulty identified in SP.
2. The reasonableness of requiring an applicant to invoke alternative national protection under rule 339J(v) had to be assessed against the objections and evidence actually advanced. The First-tier Tribunal and Upper Tribunal had addressed the specific objections raised. No wider reasonableness case had been advanced below.
3. On the factual findings accepted by the tribunals, temporary detention while nationality was investigated did not, without more, establish a breach of article 3 or a deprivation of freedom under article 33. The Upper Tribunal was entitled to rely on the absence of significant evidence of human-rights abuse or onward removal, and there was no arguable error of law.
4. The Upper Tribunal had considered the children’s interests under section 55 of the Borders, Citizenship and Immigration Act 2009. It was entitled to reject the evidence said to establish separation from their parents. Lady Justice Gloster agreed and considered that Dr Wang’s evidence did not even imply such separation.
5. MP’s points concerning the fast-track route under the South Korean Re-admission Agreement had reasonable prospects when viewed separately, but could not assist once his failure to invoke the Protection Procedure remained fatal. His article 8 ground was hopeless; even if engaged, applying immigration and asylum law was not disproportionate on the facts.

The Court declined to address amendments to the Country Guidance concerning persons absent from the Korean Peninsula for more than ten years. Permission was granted for the judgment to be cited in future cases.

• First-tier Tribunal: rejected the appellants’ claims to asylum and humanitarian protection.
• Upper Tribunal (Immigration and Asylum Chamber): on 26 August 2014 dismissed the combined appeals and issued amended Country Guidance.
• Court of Appeal (Civil Division): refused permission for second appeals and authorised citation of the judgment.