HA v The Secretary of State for the Home Department

Qualification Directive Article 24 does not itself confer a substantive right to remain in a Member State. It governs the documentation of a right of residence which otherwise exists, by requiring a residence permit to be issued promptly and prescribing its duration and renewability.

The Procedures Directive is procedural. It regulates the processes for determining asylum claims and does not create substantive asylum or subsidiary-protection rights. A stateless person cannot establish an entitlement to a United Kingdom residence permit solely by showing a risk in a former country of habitual residence where removal to that country is not proposed and no protection risk is asserted in the proposed destination.

The appellant was a stateless Palestinian whose country of origin was the Palestinian National Authority. Before coming to the United Kingdom, he had lived in Syria with refugee status. The Secretary of State decided that his further representations did not amount to a fresh claim under the Immigration Rules and that he did not qualify for leave to remain.

The First-tier Tribunal dismissed his appeal. It held that his protection case had to be assessed by reference to the proposed removal to the Palestinian National Authority, rather than a hypothetical removal to Syria. The appellant appealed to the Upper Tribunal, relying principally on Articles 2(e), 15(c) and 24(2) of the Qualification Directive.

The central question was whether risk in a stateless person’s former country of habitual residence could alone entitle that person to a United Kingdom residence permit when removal to that country was not proposed.

1. Appeal dismissed. The Upper Tribunal found no error of law in the First-tier Tribunal’s decision and answered the certified question in the negative.

2. Although it was accepted that the appellant fell within the definition in Article 2(e) of the Qualification Directive if returned to Syria, that did not establish an entitlement to remain in the United Kingdom. His proposed destination was the Palestinian National Authority, and he did not contend that he would face persecution or other proscribed ill-treatment there.

3. Article 24(2) does not create an independent substantive right of residence. It is concerned with the formal documentation of a residence right already held by a beneficiary of subsidiary protection. Its requirements that a permit be issued promptly, be valid for at least one year and be renewable ensure the practical exercise of that pre-existing right.

4. The Procedures Directive, including its safe-third-country provisions, is an adjectival measure regulating the processes and mechanisms for determining asylum applications. It creates no substantive right to asylum or subsidiary protection. Its structure was consistent with a guarantee against refoulement, rather than a general prohibition on expulsion.

5. Articles 1 and 18 of the Charter did not assist. There was no evidential basis for concluding that return to the Palestinian National Authority would infringe human dignity, and Article 18 did not enlarge the substantive protections of the Refugee Convention and its Protocol.

6. Country guidance concerning the Palestinian territories did not bear on the appeal because no issue arose about the treatment the appellant would receive on return there.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal, holding that the First-tier Tribunal had made no error of law.
• First-tier Tribunal: dismissed the appellant’s appeal against the Secretary of State’s decision that further representations did not constitute a fresh claim and that leave to remain was not available.