The Secretary of State for the Home Department v Aymen Mohammed Bashir Essa

An appeal against revocation of protection status under section 82(1)(c) of the Nationality, Immigration and Asylum Act 2002 concerns the basis on which the relevant leave was granted. Its sole ground is breach of the Refugee Convention under section 84(3)(a), rather than compliance with the Immigration Rules.

The Tribunal must determine that Convention ground. However, where section 72(10) applies, it must formally dismiss the appeal even if the ground is made out. A person falling within article 33(2) remains a refugee under the Convention unless removed, although national refugee status and associated leave may be revoked.

The Secretary of State appealed against the First-tier Tribunal's decision allowing the Sudanese claimant's appeal against revocation of his protection status under paragraph 339AC of the Immigration Rules.

The claimant remained at risk of persecution as a non-Arab Darfuri. Following convictions for serious offences and a nine-year sentence, the Secretary of State certified the case under section 72(9) of the Nationality, Immigration and Asylum Act 2002. The First-tier Tribunal found that the statutory presumption concerning article 33(2) applied, but allowed the appeal because revocation of refugee status would breach the Refugee Convention.

The central issue was whether the Tribunal could allow an appeal on the sole Convention ground when section 72(10) required dismissal.

1. Appeal allowed. The First-tier Tribunal made an error of law by allowing the appeal despite the mandatory effect of section 72(10). Its decision was set aside and substituted with a formal dismissal.

2. An appeal under section 82(1)(c) is against revocation of the basis upon which leave was granted. The only permissible ground, under section 84(3)(a), is breach of the Refugee Convention. The appeal must therefore be determined by reference to the Convention, not the Immigration Rules.

3. A removable refugee remains a refugee under the Convention. Article 33(2) permits removal in the specified circumstances, but does not itself revoke Convention refugee status. National status and leave under the Immigration Rules may nevertheless be revoked.

4. Section 72 imposes a national, rule-based determination of whether article 33(2) applies. Where section 72(10) applies, it requires dismissal even though the Convention ground succeeds. The Tribunal may consequently determine that the ground is made out, as required by section 86, while dismissing the appeal.

5. The substituted decision dismissed the appeal under section 72(10), while determining that the Refugee Convention ground was made out. The claimant's Convention status and entitlement to Convention benefits were not thereby affected.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State's appeal was allowed. The Tribunal set aside the First-tier Tribunal's decision and substituted a dismissal under section 72(10) of the Nationality, Immigration and Asylum Act 2002.
• First-tier Tribunal: Judge O'Rourke had allowed the claimant's appeal against revocation of protection status, having found that revocation would breach the Refugee Convention.