Mon, 05 Dec 2011
By Becket Bedford
For those of us privileged still to be arguing points of law with the permission of the Court of Appeal in asylum cases, there may soon be times potentially to rival the heady days when a Blake, a MacDonald or a Manjit Gill fought for, and won or lost, those first principles of a domestic asylum law by which today we, unreflecting, rate the chances of success.
Can we imagine an asylum system without a Ravichandran principle in which the Upper Tribunal is not the extension of UKBA’s decision-making function, where, on the contrary, it is an ordinary appeal body, with no different function from that of the Court of Appeal. Should we yet examine this, a fundamental tenet of our asylum law, when the point was argued by Ian Macdonald QC and lost before Simon Brown LJ, as he was then, in Ravichandran v SSHD  Imm AR 97?
What of the decision in SSHD v R ex p Adan  UKHL 15 in which Nicholas Blake QC argued and the House of Lords rejected, the proposition that a refugee whose flight to the UK is coerced may still qualify for international protection even if his fear of return is of indiscriminate violence alone. Has this decision stood the test of time?
What should we make today of the decision in Januzi v SSHD  UKHL 5? When Lord Bingham rejected the call of Nicholas Blake QC and Manjit Gill QC that internal relocation should offer the same protections, which the Refugee Convention would require of a country of asylum. Lord Bingham’s reasoning comprised detailed exegesis of the positions adopted in the common law world, but barely touched on the jurisprudence of the civil systems of our continental neighbours. Ultimately, as Lord Carswell frankly offered at para 67, the interposition of the test of undue harshness was a choice, and one, which is not compelled.
Their Lordships House preferred the approach of the Canadian courts, to the analysis of the Canadian academic, Professor Hathaway, or the approach of the New Zealand courts. There is nevertheless a first hint in the opinion of Lord Bingham at para 17 of the coming importance of the European Asylum System, a system, which is destined to become the common law of asylum in the European Union and to regulate the fundamental status of refugees in the Union.
The retrenchment of the British courts in opposition to the expansive arguments of leading refugee counsel reached an apotheosis in the Roma Rights case  UKHL 55 when the Bingham court dismissed the notion that asylum should even constitute a legal right for the purposes of English law.
The retrenchment continued in cases like SSHD v AH (Sudan)  UKHL 49 in which Lady Hale ruled that the AIT, no matter how clunking the expression of its country guidance, was unlikely (ever?) to go wrong in law.
That view has prevailed until today, so that by the decision in R (Cart) v Upper Tribunal  UKSC 28, as interpreted and applied by the Court of Appeal in PR (Sri Lanka) v SSHD  EWCA Civ 988, those first principles of domestic asylum law are so firmly entrenched and surrounded by moat, no drawbridge should be lowered to the Court of Appeal or the Supreme Court in asylum cases, except exceptionally for a new point of law or some compelling other legal reason.
At the time of writing material error of law in the determination of asylum claims by tribunal is tolerated in law. Quite what affect the court of appeal’s ruling in PR (Sri Lanka) will have on confidence in the administration of justice is a matter for others, but today should we not predict with confidence that it undermines the starting point on fresh claim, which, according to Devaseelan  UKAIT 000702, is that the tribunal’s previous decision is legally irreproachable. If potentially the previous determination contains material error of law, which by virtue of section 13(6) of the Tribunals, Courts and Enforcement Act 2007 cannot be corrected on appeal, the Devaseelan principle hangs in threads.
Before the advent of the Common European Asylum System there were isolated decisions of the British court, which flattered. In the other Adan, for example, the far sighted decision of the Slynn court in SSHD v R ex p Adan  UKHL 67, their Lordships ruled that the SSHD could not return an asylum seeker to Germany, if the law of German asylum was incompatible with the correct view (our view?) of the Refugee Convention and would lead to Germany returning the asylum seeker to persecution.
We should not be deceived however because in SSHD v Nasseri  UKHL 23 Lord Hoffman ruled at para 44 that patent deficiencies in the asylum law of Greece notwithstanding, the SSHD was not concerned with Greek law, only whether in practice return to Greece would lead to refoulement.
Nasseri marks the likely point in time when the British retrenchment in asylum law began to overreach itself. The Strasbourg court in Grand Chamber effectively overrules Nasseri in M.S.S. v Belgium and Greece application no. 30696/09 (21 January 2011) regarding Convention law and it would be surprising if the Luxembourg court in Grand Chamber in case C-411/10 Saeedi, does not follow the decision of the Advocate General of 22 September 2011, and do likewise for the purposes of EU law.
Enter the Common European Asylum system. In the next year and following years we may well see cherished principles of English asylum law overturned by reference to EU law and the development of a common European asylum law.
Saeedi should mark the beginning, but there is no telling where or how it will end. A probable outcome will be for the British courts to anticipate the change, to invest it with English law and find shortly it is outdone. Take for example the extraordinary pairing of the case of ZH (Tanzania) v SSHD  UKSC 4 (1 February 2011) and case C-34/0 Zambrano v ONEm (8 March 2011).
The Ravichandran principle looks vulnerable to challenge by EU law since refugee status under the Qualification Directive 2004/83/EC is more than simply protection from return to persecution. It contains within it the right to benefits, to work and accommodation. If a person claims an entitlement to be paid benefits because he has no work, his claim for unpaid benefit is not extinguished when he finds work.
Additionally, by the Common European Asylum System refugee status does not lapse automatically. A change in the circumstances, which led to qualification as a refugee does not cause refugee status to lapse by operation of law. Refugee status continues in EU law until a decision is taken, which revokes it, subject always to further appeal.
If the Ravichandran principle were to go one could envisage Afghan minors denied valid appeals as children before the Upper Tribunal because of error of law, qualifying for refugee status even as adults. It is already arguable that section 83 of the 2002 Act is incompatible with the right to effective remedy under the Common European Asylum System and Article 47 of the Charter of Fundamental Rights of the European Union in so far as it defers immediate right of appeal against a decision taken on an asylum application, especially in the case of un accompanied minors.
The notion that asylum is not a civil right under Convention law for the purposes of Art 6 took a surprising knock in MK (Iran) v SSHD  EWCA Civ 115 at para 70 by reference to a formidable argument that refugee status under EU law is a right, arguably overtaking the decision in the Roma Rights case and Januzi that asylum is not a legal right in English law.
The stipulation in English law that internal relocation is unreasonable only where it is unduly harsh may be due for revision given the stringency of the English test is not provided for by article 8, which defines of internal protection for the purposes of the Qualification Directive.
Analogy should be made with the tide of restriction, which for so long was an impediment to respect for family life under Convention law and Article 8. You may remember how the requirement for there to be insuperable obstacles became a simple test of reasonableness or how once the decision was for the SSHD subject to Wednesbury principles until now it is a decision for the court or tribunal.
Further it is barely appreciated among domestic lawyers with no particular expertise in EU law that neither the Court of Appeal, nor indeed any court in the member states, may bind itself or inferior courts on a point of EU law: Trent Taverns v Sykes  EWCA Civ 643.
Nor is it commonly understood that arguably a failure to grant refugee status in breach of the Common European Asylum System is a serious breach of EU law, which should give rise to a claim for damages against the SSHD without the restrictions of the English laws of tort: Brasserie du Pecheur and Factortame (No4)  QB 404 (ECJ).
If a common asylum lawyer of the European Union were to be permitted a supreme ambition it well may be that there should be a common standard of proof in asylum claims. It is already apparent in the light of the Strasbourg court’s decision in RC v Sweden, application no. 41827/07  ECHR 307 (9 March 2010) that the acceptance in English law of the burden of proof by the asylum applicant in all cases may be mistaken.
A common standard should prevent two tribunals considering separately the claims of two brothers who, attacked at the same time, in the same house, are adjudged by reference to the same background materials: the one to be a refugee, the other to be safe: cf Otshudi v SSHD  EWCA Civ 893.
Perversely it is the lower standard of proof in English asylum law, which is held to mean that there is no inconsistency in two immigration judges reaching different conclusions on the same evidence in respect of family members claiming asylum arising out of the same incident.
Arguably, only a new common standard adopted by the Luxembourg court will lead to different decisions on the same evidence producing the same results. The point is not idle for without a common European standard of proof, meticulous judges in one member state may trigger inadvertent asylum flows across Europe, thus negating the purpose of EU legislation in the field of asylum which led to the adoption of a Common European Asylum System.
The problem is real, take for example recent Finnish country guidance on conditions for returnees to Iraq and lets say it reaches a different conclusion, because of the application of a different interpretation of the standard to be applied in asylum law when testing for the risk of persecution or eligibility for subsidiary protection, to the Tribunal in HM (Article 15c) Iraq CG  UKUT 331 (IAC). If the two decisions were to stand one might expect Iraqis to beat a path to Finland crossing the whole of Europe to get there.
According to our own decision in the other Adan case, which foreshadows, perhaps, the likely decision in Saeedi, what will be the position if the English courts were to examine the Finnish interpretation of the Common European Asylum System and find that it differs from our own? Surely there will be no alternative but to seek a reference from the Luxembourg Court to determine which is the definitive approach, and where, one day, the argument might be accepted that to maintain consistency across the Union in the standard of the determination of asylum claims, the tribunals or courts of the member states must not reject an asylum claim made to one of them in the territory of European Union unless no reasonable court or tribunal properly directed on the evidence before it could find that the applicant was a refugee.
The common asylum law of the European Union will need a common standard of proof and what more appropriate institution to furnish the standard than the common law system of England and Wales with an applied version of the Wednesbury test, tweaked, to achieve consistency in the making asylum decisions across the Union.