[2024] UKUT 00323 (IAC)

Section 2 of the Asylum and Immigration Appeals Act 1993 (‘AIAA 1993’) states:

At the date of the decision to revoke refugee status in this case, the Interpretation section of the immigration rules set out the following definitions:

The criteria for granting leave to remain as a refugee under the immigration rules were as follows:

At the date of the decision the immigration rules relating to ‘revocation of refugee status’ were as follows:

We observe that there was a distinction between the mandatory wording of the rules relating to cases involving cessation (paragraph 339A) and exclusion (paragraph 339AA) and the discretionary wording in cases involving refugees who might pose a danger to the community (paragraph 339AC). This reflected the distinction between the relevant Articles of the Convention as explained above. It also provided some flexibility in cases where arrangements could not immediately be made for a refugee to be removed. This would accord with obligations under the Refugee Convention in so far as a grant of leave to remain could still give effect to the rights and benefits accorded to a refugee pending removal pursuant to Article 33(2).

The notice of a decision to make a deportation order did not attract a right of appeal, but the decision to revoke protection status did give rise to a right of appeal under section 82 NIAA 2002. The relevant wording of section 82 was:

We have emphasised the relevant phrase in section 82(2)(c), it is that phrase that has the effect that the revocation of leave to remain is the revocation of ‘protection status’.

The relevant ground of appeal under section 84 NIAA 2002 was:

The Tribunal must determine an appeal brought under section 82 with reference to section 86 NIAA 2002:

In Essa the Upper Tribunal highlighted the varying terminology used in the statutory scheme. It was not always consistent with the Refugee Convention, which contains no principle of ‘revocation’ of status. A grant of leave to remain at that time would have been giving effect to the Directive as a grant of European Refugee Status in accordance with Article 13 of the Directive. Broadly speaking, the immigration rules used the terminology contained in Article 14(4) of the Directive i.e. refusing to grant or deciding to revoke status where a person constitutes a danger to the community [10]. In principle, there was no objection to the term being use as a mechanism under domestic law to revoke a person’s leave to remain, but that did not necessarily affect an individual’s status under the Refugee Convention [11].

Although the term ‘refugee status’ was used in the immigration rules, the term ‘protection status’ was used in the context of statutory appeals. The term ‘protection status’ was defined by reference to a grant of leave to remain as a refugee under the immigration rules. The Upper Tribunal noted that there was some tension between that and the wording of the relevant ground of appeal under section 84(3)(a), which required a court or tribunal to consider whether revocation of leave to remain as a refugee granted under the rules (‘protection status’) would amount to a breach of the United Kingdom’s obligations under the Refugee Convention.

The Upper Tribunal considered whether the relevant ground of appeal was focussed on (i) the loss of leave to remain as a refugee as granted under the immigration rules; or (ii) with direct reference to status under the Refugee Convention [13]. The Upper Tribunal initially considered that there might be some force to the second proposition [14]. However, it went on to consider how the wording of section 84(3)(a) NIAA 2002 interacted with section 72(10) NIAA 2002 and concluded that the first of the two propositions was applicable [17].

The Upper Tribunal in Essa concluded that the requirement contained in section 72(10) NIAA 2002 to dismiss an appeal if a person had failed to rebut the presumption that they constitute a danger to the community amounted to a ‘national gloss’ on the meaning of Article 33(2). Section 72 was intended to remove from decision makers any evaluation with direct reference to the Convention and to replace it ‘with a rule-based national interpretation.’ [17]. Sometimes the result might be a decision that does not accord with the meaning of Article 33(2) under international law.

For these reasons, the Upper Tribunal concluded that an appeal brought against the revocation of ‘protection status’ under section 82(1)(c) NIAA 2002 focussed on the effect of the revocation of leave to remain as a refugee as granted under the immigration rules albeit the ground of appeal under section 84(3) had to be determined by reference to the Refugee Convention. However, if section 72(10) applied, the statutory scheme mandated that the appeal must be dismissed even if the decision, as a matter of fact, might lead to a breach the United Kingdom’s obligations under the Refugee Convention [18].

In Essa, the Upper Tribunal emphasised that, even if the appeal must be dismissed because of the ‘national gloss’ on Article 33(2) contained in the statutory scheme, section 86 NIAA 2002 still required the Tribunal to determine whether the ground of appeal with reference to the Refugee Convention was made out. This is important because if a person still has Convention Refugee Status, despite the appeal being dismissed by operation of statute, they continue to be entitled to the rights and benefits of the Refugee Convention pending removal according to international law [21].