subject: Refugees and safe third country [print this page] Refugees and safe third country Refugees and safe third country
RR (refugee-safe third country) Syria [2010] UKUT 422 (IAC) (13 November 2010)
The claimant was a national of Syria, married to a national of Algeria. In 2008 the Secretary of State for the Home Office (SSHO) rejected her asylum claim, with the intention to remove her to either Syria or Algeria. Her appeal was allowed on the grounds of asylum, humanitarian protection and Article 3 ECHR (torture and degrading treatment). The SSHO obtained an order for reconsideration of the decision to remove the claimant to Algeria based on the Algerian nationality of her husband and children, and the fact she had lived previously in Algeria for nine months.
Regarding legal status, the claimant was a refugee from Syria, facing persecution for political opinion. Refugee status was determined in terms of the country of nationality, not any other country. Had the claimant had dual or multiple nationalities, she would only have been deemed a refugee had she been unable to avail herself of the protection of all the countries of which she was a national (R v A Special Adjudicator, ex p Abudine [1995] Imm AR 60; UNHCR Handbook at 106).
Once it was established that the claimant was a refugee, the appeal against removal to Algeria was allowable only if the removal would be in violation of Article 33 of the Refugee Convention (R v Secretary of State for the Home Department ex parte Adan and Aitsegeur [2000] UKHL 67; R (Yogathas) [2002] UKHL 36; TI v United Kingdom [2000] INLR 211). Article 33 prohibited the return of a refugee to countries where his/her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. Article 33 applied to any refugee, whatever the legal status of his/her presence under national law.
In contrast, in the UK, Article 32 of the Refugee Convention applied only to refugees who had been granted leave to enter and to stay under paragraph 334 of the Immigration Rules. Article 32 stipulated that refugees should not be expelled, except on grounds of national security or public order. However, refugee status would not of itself entitle the claimant to a grant of asylum (Secretary of State for the Home Department v ST (Eritrea) [2010] EWCA Civ 643).
It was no part of the definition of refugee' that the subject be formally recognised as such by the grant of asylum (ZN (Afghanistan) and Ors v Entry Clearance Officer (Karachi) [2010] UKSC 21). Thus, the claimant was not entitled to the protection of Article 32 because she had not been granted the right of lawful presence in the UK.
In the event the appeal was allowed by virtue of Article 33, which prohibited both direct and indirect return or expulsion to countries where life or freedom would be threatened (R v Secretary of State for the Home Department ex parte Adan and Aitsegeur [2000] UKHL 67). Co-operation between Syria and Algeria, as described by the Honorary Legal Adviser to the Algerian Embassy, was such that Algeria would hand over opponents of the Syrian regime'. The claimant's family history, personal circumstances and previous dealings with the Syrian authorities made it reasonably likely she would fall under such agreements. Her removal to Algeria would therefore be in direct contravention of Article 33, and contrary to the UK's obligations under the Refugee Convention. Removal to Algeria would also violate the claimant's Article 3 ECHR rights.
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