[2024] UKUT 00323 (IAC)

As the UNHCR has pointed out, there are distinctions between ‘Convention Refugee Status’ and ‘European Refugee Status’ granted with reference to the Qualification Directive (2004/83/EC).

Under the Convention, a person has refugee status as soon as they meet the definition contained in Article 1A(2), whether it has been recognised or not. A grant of leave to remain as a refugee is a declaratory act recognising an existing Convention Refugee Status under international law.

Under the Directive, refugee status was defined by Article 2(d) as recognition of that status by a Member State. European Refugee Status only came into existence if it was granted to a person who qualified as a refugee as defined in the Directive and by operation of Article 13.

Under the Convention, refugee status might be cancelled or withdrawn if the cessation or exclusion clauses apply. In contrast, when the exception to the principle of non-refoulement contained in Article 33(2) applies, the person continues to have Convention Refugee Status but can lawfully be expelled or removed from the host state without breaching obligations under the Refugee Convention.

Under the Directive, a Member State could ‘revoke, end or refuse to renew’ European Refugee Status in circumstances where a person ceased to be a refugee (Article 11), was excluded from being a refugee (Article 12) and if the circumstances contained in Article 14(4) applied (particularly serious crime/danger to the community). The incorporation of powers to revoke or end European Refugee Status in circumstances where Article 33(2) is likely to apply is where the UNHCR has expressed concern about substantive modifications to the Convention.

The Court of Justice of the European Union (CJEU) considered the distinction between the two forms of status in M & Others (revocation of refugee status) (C-391/16); [2019] 3 CMLR 30. The CJEU made clear that Article 14(4), which contains the same wording in the recast Directive, is not an exclusion clause. The Court distinguished between ‘being a refugee’ for the purpose of Article 1A of the Convention and the grant of ‘refugee status’ under the Directive. Article 14(6) made clear that those whose ‘refugee status’ is revoked under Article 14(4) or not granted under Article 14(5) of the Directive are still entitled to the rights and benefits set out in the Refugee Convention, which the court described as a ‘light-refugee’ status in view of the broader rights and benefits associated with status granted under the Directive.

The Upper Tribunal in Essa (Revocation of protection status appeals) [2018] UKUT 00244 (IAC) referred to an earlier decision in Dang (Refugee – query revocation – Article 3) [2013] UKUT 00043 (IAC), which also pointed to the differences between Convention Refugee Status and European Refugee Status. In Essa, the respondent asserted that the cessation clause applied. The Upper Tribunal considered the scope of an appeal against ‘revocation of protection status’ under section 82 NIAA 2002. This was in the context of a finding that the presumptions contained in section 72, that a person had been convicted of a particularly serious crime and posed a danger to the community, had not been rebutted.