The Secretary of State for the Home Department v Wajdi Saeed Abunar

Eligibility for humanitarian protection under the Refugee Qualification Directive depends on the risk of serious harm on return to the claimant’s country of origin. For a national, that is the country of nationality; it is not another country to which removal may be proposed.

Paragraph 339C of the Immigration Rules instead refers to the “country of return”. It therefore appears not correctly to transpose the Directive. Where the Directive’s conditions are met in the claimant’s country of nationality, a proposed removal to a different country cannot justify refusal of humanitarian protection.

The Secretary of State appealed against a First-tier Tribunal decision allowing the claimant’s appeal on humanitarian-protection grounds. The First-tier Tribunal found that he was a Syrian national who had lived lawfully in Egypt and could safely return there, but that conditions in Syria engaged article 15(c) of the Refugee Qualification Directive.

Permission was granted only on the question whether humanitarian protection could be refused because the claimant could be removed to Egypt. The central issue was the relationship between paragraph 339C of the Immigration Rules, which refers to the country of return, and the Directive’s definition of a person eligible for subsidiary protection by reference to the country of origin.

1. The Secretary of State’s appeal was dismissed. Although the First-tier Tribunal had no power itself to grant humanitarian protection, its factual findings established that the claimant was entitled to it.

2. Article 15(c) of the Refugee Qualification Directive identifies a form of serious harm. Article 18 requires Member States to grant subsidiary-protection status to a person eligible under the Directive. Under article 2(e), eligibility turns on whether a person would face a real risk of serious harm if returned to his or her country of origin and cannot, or owing to that risk will not, obtain that country’s protection.

3. For a national, article 2(k) defines the country of origin as the country of nationality. On the accepted findings, Syria was the claimant’s country of origin and conditions there engaged article 15(c). His ability safely to return to Egypt did not answer the Directive question.

4. Paragraph 339C of the Immigration Rules uses the undefined expression “country of return”, which was understood to mean a proposed country of return whether or not it is the claimant’s country of origin. The Tribunal held that the provision therefore appears not correctly to transpose the relevant Directive provisions. The Secretary of State did not invite the Tribunal to apply the Rules instead of the Directive.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The Tribunal held that the claimant was entitled to humanitarian protection under the Refugee Qualification Directive.
• First-tier Tribunal: The appeal was allowed on humanitarian-protection grounds. It found that the claimant was Syrian, that he had lived in Egypt, and that he would not be in danger on return to Egypt.