Secretary of State for the Home Department v Rekan Shwan Kakarash

When revocation of humanitarian protection is challenged, the first question is whether the individual remains eligible for that protection. Exclusion on any one of the alternative grounds in paragraph 339GB of the Immigration Rules is sufficient. A serious crime and danger to the community are separate grounds; both need not be established.

Published policy must be interpreted objectively, as a whole and in context. The policy considered here did not adopt a more favourable standard. In any event, the First-tier Tribunal could not use legitimate expectation or good administration to allow an appeal under the humanitarian-protection ground in section 84(3)(b) of the 2002 Act.

The Secretary of State revoked the respondent’s humanitarian protection after he pleaded guilty to unlawful wounding and possessing a bladed article in a public place and received a fifteen-month custodial sentence.

The First-tier Tribunal accepted that he had committed a serious crime but found that he was not a danger to the community. It interpreted the Secretary of State’s Humanitarian Protection policy as requiring both matters and allowed the appeal under section 84(3)(b) of the Nationality, Immigration and Asylum Act 2002.

The Secretary of State appealed, challenging both the interpretation of the policy and the First-tier Tribunal’s jurisdiction. The central issues were whether the policy imposed a higher threshold than the Qualification Directive and Immigration Rules, and whether that policy could determine an appeal against revocation of protection status.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside. The appeal was dismissed on the humanitarian-protection ground and remitted to the First-tier Tribunal to consider the Refugee Convention ground alone.
2. The First-tier Tribunal acted unfairly by deciding the policy issue without giving the parties an opportunity to address it. It also misunderstood the policy. Read objectively, as a whole and in context, the policy directed caseworkers to apply the Qualification Directive and the Immigration Rules. It did not require both a serious crime and danger to the community before revocation could be pursued.
3. Article 17(1)(b) and (d) of the Qualification Directive and paragraphs 339GB(iii) and (iv) of the Immigration Rules establish alternative exclusion grounds. A person who has committed a serious crime is not eligible for humanitarian protection, whether or not that person also represents a danger to the community.
4. After the amendments made by the Immigration Act 2014, the Tribunal no longer has jurisdiction to allow an appeal because a decision is otherwise not in accordance with the law. The authorities concerning the former ground of appeal therefore did not assist.
5. Even a clear policy of the kind postulated by the Tribunal could not determine an appeal brought only under section 84(3)(b). The statutory question was whether revocation breached obligations owed to persons eligible for humanitarian protection. A person excluded under Article 17 or paragraph 339GB is not such a person.
6. The Tribunal did not need to decide the scope of any right to good administration under Article 41 of the Charter. It nevertheless observed that Article 41 concerns Union institutions, bodies, offices and agencies, rather than Member States.
7. The respondent had originally raised the Refugee Convention ground, and the procedural history justified giving him an opportunity to pursue it. That issue was remitted without reopening the findings that the crime was serious and that he did not constitute a danger to the UK community.

• First-tier Tribunal: accepted that the respondent had committed a particularly serious crime but found that he was not a danger to the community. It allowed the appeal under section 84(3)(b) of the 2002 Act.
• Upper Tribunal: allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision, substituted a decision dismissing the humanitarian-protection appeal, and remitted the Refugee Convention ground alone.