TG v The Secretary of State for the Home Department

Immigration Rules paragraph 334 must be interpreted consistently with the Qualification Directive and the Procedures Directive. Where the Secretary of State relies on another state as a first country of asylum, the Secretary of State bears the burden of proving, on the balance of probabilities, that the claimant will be readmitted there and otherwise enjoy sufficient protection.

Protection is not confined to protection against refoulement. It includes the wider protection required by the Refugee Convention. A person whose residence documents in the proposed receiving state were obtained by deception may establish that there is no realistic prospect of readmission or of obtaining lawful status there.

The appellant was an ethnic Tibetan, born in China, who had lived in India before entering the United Kingdom and claiming asylum. The Secretary of State accepted that he was a refugee from China, but contended that he could return to India under paragraph 334(v) of the Immigration Rules and article 33(1) of the Refugee Convention.

A previous First-tier Tribunal decision had been set aside for material error of law. The Upper Tribunal therefore heard the appeal afresh. The central issues were whether India could be treated as a first country of asylum, whether the appellant would be readmitted there, and whether he would receive sufficient protection.

1. Appeal allowed on asylum grounds. The appellant was a refugee from China. He was not excluded by article 1E of the Refugee Convention or article 12(1)(b) of the Qualification Directive, because he did not enjoy in India the rights and obligations attached to Indian nationality, or their equivalent.

2. The Qualification Directive and the Procedures Directive affect the interpretation of the Refugee Convention. Accordingly, paragraph 334 of the Immigration Rules had to be read consistently with those Directives.

3. Where the Secretary of State asserted that India was a first country of asylum, the Secretary of State had to prove on the balance of probabilities both limbs of article 26 of the Procedures Directive: that the appellant would be readmitted and that he would otherwise enjoy sufficient protection. The Tribunal distinguished MA (Ethiopia) [2009] EWCA Civ 289, which concerned nationality.

4. The appellant had acted bona fide and made reasonable practical efforts to obtain confirmation of readmission. The Tribunal accepted that his Indian registration and identity certificates had been procured by false assertions, that the Indian authorities knew of that deception, and that his identity certificate had expired. The evidence did not establish that India would readmit him or permit him to obtain documents lawfully.

5. India was neither a safe third country under article 27 nor a first country of asylum under article 26. The appellant could not obtain refugee recognition there, and the evidence did not show sufficient protection. That protection extended beyond non-refoulement and included the broader safeguards of the Refugee Convention. Removal to India or China would therefore breach the United Kingdom's Convention obligations.

The appeal was allowed. No anonymity direction was made.

• Upper Tribunal (Immigration and Asylum Chamber): Heard the appeal afresh after Deputy Upper Tribunal Judge Shaerf had set aside the First-tier Tribunal's decision in its entirety for material error of law. The Upper Tribunal allowed the appeal on asylum grounds.

• First-tier Tribunal: Its decision was set aside in its entirety. No citation for that decision was stated in the judgment.