[2024] UKUT 00323 (IAC)

We find that the first ground of appeal does not disclose any material error in the First-tier Tribunal decision. It is argued that the judge failed to give adequate weight to the fact that the Parole Board was aware that the appellant continued to drink alcohol when it made its assessment. The Parole Board did not make it a condition that he abstain from alcohol in order for the risk to be managed in the community. The grounds accept that the judge was not bound by the Parole Board’s assessment of risk and that his task was different.

The fact that the Parole Board was aware of this fact is not particuarly persuasive. It is clear that the judge considered relevant evidence from the Parole Board and the probation officer. It was open to the judge to place what weight he considered was appropriate to the fact that the appellant continued to drink alcohol in assessing the risk he posed in a different context to the assessment made by the Parole Board. For these reasons, we find that there is no error of law in the judge’s findings relating to section 72 NIAA 2002.

Turning to the second ground. In the decision to revoke refugee status dated 3 November 2021, the respondent found that the appellant constituted a danger to the community for the purpose of section 72 NIAA 2002. The respondent decided to revoke leave to remain as a refugee because paragraph 339AC of the immigration rules applied. It is a notable feature of this case that the decision letter did not suggest that the cessation or exclusion clauses applied or that the appellant no longer had a well-founded fear of persecution. In fact, the respondent went on to find that removal was likely to breach Article 3 ECHR.

The respondent accepts that the appellant continues to have Convention Refugee Status, but has revoked leave to remain as a refugee (‘protection status’) with reference to paragraph 339AC of the immigration rules because it is considered that he poses a danger to the community.

The First-tier Tribunal found that the presumptions contained in section 72 NIAA 2002 applied. As such, the appellant is a removable refugee who continues to be entitled to the rights and benefits of the Refugee Convention pending his removal. The rights and benefits of Convention Refugee Status are normally given effect by way of a grant of leave to remain as a refugee. In this case, the difficulty is the contradictory finding in the same decision, that the appellant is not in fact removable. In the circumstances, one might question the utility of the act of revoking leave to remain as a refugee.

We have already outlined that, in contrast to the Qualification Directive, the Refugee Convention does not mandate how Convention Refugee Status should be recognised or how the rights and benefits associated with that status should be given effect by a Contracting State.

Mr Clarke said that it is proposed to give the appellant Restricted Leave pending a time when he can lawfully be removed. It was beyond the scope of this hearing to examine the full details of the Restricted Leave policy and whether such status would breach the United Kingdom’s obligations under the Refugee Convention. Some aspects of the policy that were touched on briefly at the hearing might not be compatible. It becomes clear from the analysis above that any grant of leave to remain following the revocation of the appellant’s ILR would need to permit the appellant to access all the rights and benefits that he is entitled to as a person with Convention Refugee Status pending his removal.

In terms of deciding the relevant ground of appeal under section 84(3) NIAA 2002, as section 86 required, the question was whether the situation in which the appellant found himself as a result of the revocation of leave to remain as a refugee amounted to a breach of the United Kingdom’s obligations under the Refugee Convention. The answer must be that the ground of appeal is not made out, because (whatever his new leave is called) the appellant is not able to show that his present situation is one in which he is not afforded the rights and benefits to which he is entitled as a refugee.

For the above reasons, we conclude that the judge’s failure to make any specific finding in relation to the relevant ground of appeal under section 84(3) NIAA 2002 amounted to an error. However, the error did not make any difference to the outcome of the appeal because, having found that the presumptions in section 72 applied, the judge was required by operation of statute to dismiss the appeal, which he did. As such, we decline to set aside the decision.

For the reasons given above, we conclude that the First-tier Tribunal decision did not involve the making of an error of law that would have made any difference to the outcome of the appeal. The decision shall stand.