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Immigration Rules on humanitarian protection conflict with EU law

Immigration Rules on humanitarian protection conflict with EU law

The Upper Tribunal has ruled that Paragraph 339C of the Immigration Rules fails to accurately transpose the requirements of the Qualification Directive governing the grant of humanitarian protection. The outcome means that asylum seekers who face serious harm in their country of origin, even if that is not the country they would be sent back to, are entitled to humanitarian protection.

The issue in Abunar (Para 339C: “Country of return”) [2018] UKUT 387 (IAC) was whether the risk of serious harm to the applicant has to exist in the country of origin or in the country of return to establish an entitlement to humanitarian protection. The Immigration Rules at Paragraph 339C require that the risk of harm exists in the country of return, whereas the Qualification Directive uses the phrase “country of origin”. Remarkably, the Home Office Presenting Officer immediately conceded this point before the Upper Tribunal, which means this important point of law was resolved with a short judgment.

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Mr Abunar is from Syria but lived in Egypt since he was six years old. He claimed to have fled Egypt because of a fear of persecution. The First-tier Tribunal dismissed his fear of persecution on return to Egypt and found that he had previously lived there lawfully. However, the judge also found that he was a Syrian national and ruled that he should be granted humanitarian protection under the Qualification Directive because he faced a risk of serious harm in Syria.

The Secretary of State obtained permission to appeal on the grounds that the judge had not correctly applied Paragraph 339C.

The Upper Tribunal considered the terms of the Qualification Directive, which state:

‘Country of Origin’ means the country or countries of nationality or, for stateless persons, of former habitual residence.

On that basis, the tribunal concluded that Paragraph 339C incorrectly transposes the Directive:

It is therefore right to say, as Judge Phillips did say, that paragraph 339C does not refer to the country of nationality. However, the phrase used in the Directive is “country of origin”, but the phrase used in paragraph 339C is “country of return”. The latter phrase does not appear to be defined in the Immigration Rules, and it must therefore be assumed that it applies to a country of proposed return, whether or not that country is the claimant’s country of origin. It appears to follow that paragraph 339C does not correctly transpose the relevant provisions of the Directive.

This is both the correct result as a matter of law and a happy outcome for Mr Abunar, who was street homeless at the time of the hearing but was able to access support following the decision. The Home Office should be embarrassed that its decision to launch a hopeless appeal meant that a vulnerable Syrian man was denied access to housing he should have been entitled to all along.

The official headnote

It appears that paragraph 339C of the Immigration Rules does not correctly transpose the relevant provisions of the Qualification Directive.

 

Alexander Schymyck

Alex is a Judicial Assistant and previously worked in the Public Law Department at Duncan Lewis Solicitors.

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