‘Stateless’ Palestinian asylum seeker loses appeal for leave to remain in UK

The Inner House of the Court of Session rejected the appellant’s argument that, as a “stateless” person, the EU “Qualification Directive” entitled him to leave to remain.

The issue raised in the appeal was whether the Council Directive 2004/83/EC conferred on a person unlawfully present in the UK free-standing entitlement to leave to remain where that person was stateless and would face a real risk of suffering serious harm if returned to his country of former habitual residence, but where the Secretary of State proposed to remove him to a place where he faced no such risk.

Lord Brodie, Lord Bracadale and Lord Malcolm heard that the appellant Hassam Mahmud Al-Khatib, as a Palestinian formerly habitually resident in Syria and present in the UK since 2007, claimed that he was entitled to “subsidiary protection” and therefore leave to remain by virtue of the Qualification Directive – which was the product of a special meeting of the European Council in Tampere, Finland in 1999 on the creation of an area of freedom, security and justice in the European Union.

The appellant supported his contention by reference to the “Procedures Directive” – Council Directive 2005/85/EC of 1 December 2005 – on minimum standards on procedures in Member States for granting and withdrawing refugee status.

However the respondent, the Home Secretary, disputed that that was the effect of the respective directives in circumstances where it was proposed to remove the appellant to the territory of the Palestinian National Authority (PNA).

It was submitted that as a Palestinian registered with the United Nations Relief and Works Agency (UNRWA) the appellant was stateless – he had no country nationality.

He had been habitually resident in Syria before he came to the UK, but there was a “real risk” that he would suffer serious harm if returned to Syria, he claimed.

It was accepted that the respondent had recognised that and accordingly proposed to remove the appellant to Gaza in the territories of the PNA, but neither Gaza nor the PNA is a state and, not being a state, could not be regarded as a “safe third country”.

It followed that the appellant was eligible for “subsidiary protection” and that the respondent was obliged by Article 18 of the Qualification Directive to grant him subsidiary protection status and a “residence permit” as required by Article 24.

To that extent, it was submitted, the Qualification Directive went “beyond the protection” conferred by the Refugee Convention.

On behalf of the respondent it was argued that the question of entitlement to the status of refugee should be distinguished from the question of what benefits ensued from that status.

While there was a prohibition against refoulement – the expulsion of a person to a territory where he will be in danger – the principle of non-refoulement did not prevent expulsion where that would not result in a person’s return to a place of danger.

As for the appellant’s argument that the territories of the PNA did not qualify as a safe third country, that matter had been determined against the appellant by the First-tier Tribunal and was not subject to appeal, but in any event “country” should be given a “wide interpretation” to ensure that every situation was covered.

Delivering the opinion of the court, Lord Brodie said: “The safe third country concept is intrinsically connected to the principle of non-refoulement. A refugee is someone with a well-founded fear of persecution in his country of nationality or, if stateless, in his country of former habitual residence. A person eligible for subsidiary protection is someone who faces a real risk of harm in his country of origin or, again if stateless, in his country of former habitual residence.

“As we have explained, international protection means not returning the asylum seeker to one of these countries, whether of nationality, origin or habitual residence, where the asylum seeker would be at risk. But, as we have also explained, non-refoulement does not prevent removal to a country where the asylum seeker would not be at risk. Such a country (not being a Member State) is described as a ‘safe third country’ and the principle that permits removal to it as the ‘safe third country concept’.

“We do not accept that the facts of this case, taken with the terms of the Procedures Directive have the result that the removal of the appellant to the territories of the PNA contravenes the principle of non-refoulement.”

The court also accepted the respondent’s submission that a “broad definition” should be given to “country” when considering the safe third country principle.

Lord Brodie added: “As a matter of fact the territories of the PNA have been determined by the First-tier Tribunal to be safe, as far the appellant is concerned, and not only has that determination not been appealed, we understood the appellant’s legal advisers to have taken that assessment as being factually correct.

“The principle of non-refoulement is fundamental to the structure of international protection which, following the Tampere Conclusions, the Qualification Directive, in respect of rights and obligations, and the Procedures Directive, in respect of procedure, build on.

“The Upper Tribunal was satisfied that the Procedures Directive did not create any substantive rights in the realm of asylum or subsidiary protection. So are we.”