Asylum - Humanitarian protection grounds - Equivalency principle
lFA (Iraq) v Secretary of State for the Home Department: SC (Lord Phillips (president), Lord Hope (deputy president), Justices of the Supreme Court Lord Brown, Lord Kerr, Lord Dyson): 25 May 2011
The claimant was an Iraqi national who arrived in the UK in August 2007.
He was aged 15 and was unaccompanied. He applied for asylum.
In October, the defendant secretary of state refused the application, finding that the evidence that the claimant supplied in support of his application was not credible.
The secretary of state went on to consider whether the claimant qualified for humanitarian protection and/or discretionary leave to remain in the UK.
In that context, humanitarian protection was the domestic means of providing ‘subsidiary protection’ to certain third country nationals or stateless persons as required by Council Directive (EC) 2004/83 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted) (the Qualification Directive).
It was decided that the claimant did not qualify for such humanitarian protection but he was granted discretionary leave to remain until he reached 17 years and six months of age.
The claimant appealed against the refusal of his asylum claim.
He alleged that his rights under articles 2, 3 and 5 of the European Convention on Human Rights would be contravened if he were removed to Iraq and that he might suffer serious harm as defined in the Qualification Directive.
The appeal was dismissed on both asylum and humanitarian protection grounds.
The claimant applied for a reconsideration of his appeal.
The senior immigration judge ordered that there would not be a reconsideration of his appeal on asylum grounds, but that reconsideration would be given to the issue of whether there would be a ‘serious and individual threat to his life by reason of indiscriminate violence during internal armed conflict’ under the Qualification Directive and paragraph 339 of the Immigration Rules (HC395) (the Rules).
Paragraph 339 of the rules incorporated into domestic law the subsidiary protection provisions of the Qualification Directive.
The asylum and immigration tribunal held that the original appeal should have been confined to the refusal of the asylum claim as no appeal had been available to the claimant in relation to human rights claims or humanitarian protection grounds under section 83 of the Nationality, Immigrations and Asylum Act 2002.
Consequently, the tribunal substituted the original decision with a dismissal of the appeal on asylum grounds only.
The claimant appealed the decision of the tribunal.
The claimant’s appeal involved issues of construction of sections 82 to 84 of the 2002 act and the question of whether the decision of the tribunal had deprived him of an effective judicial remedy against an adverse act of the administration contrary to general principles of EU law.
He further submitted that the principle of equivalence required that claims based on EU law should not be subject to rules that were less favourable than those based on claims which had national law as their source.
The Court of Appeal accepted that the principle of equivalence required that a right of appeal against the humanitarian protection decision be recognised since the lack of an appeal would mean that the claim, based as it was on EU law, had been subjected to rules which were less favourable than those which applied to the asylum claim, where that claim was based on national law.
It held that section 113(1) of the 2002 act, which provided that ‘asylum claim’ meant ‘a claim made by a person that to remove him from or require him to leave the UK would breach the UK's obligations under the Refugee Convention’ would have to have the words ‘and/or Qualification Directive’ added to it.
A similar addition to section 84(3) was also required so as to enlarge the grounds on which the appeal might be brought. The secretary of state appealed.
The issue to be determined was whether the equivalence principle required that a right to appeal had to be available against the decision to dismiss the claimant’s application for humanitarian protection.
That depended upon whether the claimant could demonstrate that there was a comparable domestic right, namely his asylum claim, which was subject to more favourable rules than was his humanitarian protection right.
The secretary of state submitted that there was no purely domestic measure against which a comparison of the rules applicable to claims for humanitarian protection could be made and that such claims had far closer similarities to those that were made under the Human Rights Act 1998.
She further submitted that the mooted comparators, the asylum claim and the humanitarian protection claims, both had their origin in Chapter VII of the Qualification Directive.
Therefore, as both were rooted in EU law and not from different sources, and since that was the essential requirement for the activation of the equivalence principle, it could not be prayed in aid in the instant case.
The court ruled that a number of issues had arisen in the instant proceedings that required a preliminary ruling by the Court of Justice of the European Union under article 267 of the Treaty on the Functioning of the European Union.
Questions, once formulated, would accordingly be submitted (see  of the judgment).
Raza Husain QC, Takis Tridimas and Nick Armstrong (instructed by Immigration Advisory Service) for the claimant; Tim Eicke QC and Alan Payne (instructed by the Treasury Solicitor) for the secretary of state.