New Horizons in Asylum Law

The first, Elgafaji C-465/07, concerns the Qualification Directive (2004/83/EC), which establishes an EC "status" of refugee, broadly following international refugee law, and a secondary "subsidiary protection status" ("SPS"), broadly reflecting human rights law on risk on return. In February, the ECJ held that Article 15(c), which defines the scope of SPS, is, "a provision, the content of which is different from that of Article 3 ECHR" and it has to be interpreted "independently", with "its own field of application". Read on

Tension Between Human Rights And National Security

RB and U are Algerian citizens. OO (better known as Abu Qatada) is a citizen of Jordan. Each had been served with notice of deportation to his country of origin on grounds of national security pursuant to section 3(5) of the Immigration Act 1971. Each claimed that, if returned, he would face a real risk of ill-treatment contrary to Article 3 of the ECHR and in OO's case denial of fair trial rights contrary to Article 6. All three had claimed asylum status. RB's claims were unresolved. U's claim was rejected. OO's claim was successful. The House of Lords RB v Home Office [2009] UKHL 10 ('RB') upheld the Secretary of State's decision to deport, which had originally been endorsed by the Special Immigration Appeals Commission (SIAC) but (in OO's case) overturned by the Court of Appeal. The cases highlighted the tension between human rights and national security. Read on

A Curate's Egg?

Article 31 of the Convention and Protocol relating to the Status of Refugees ("Article 31") is a relatively simple provision to understand. It recognises that asylum seekers often have to resort to subterfuge to escape the place in which they are persecuted. They might have to travel under false papers, in a false name, giving false reasons for travel. Its plain purpose is to require signatory states to provide immunity from the general or specific immigration provisions of their criminal law relating to the use of false documents to asylum seekers engaging in such practices for the purposes of flight. Read on

Case Notes

This case concerned the issue of whether children who had been adopted de facto by a person recognised as a refugee by the UK were entitled to entry clearance when they were not so entitled pursuant to the Immigration Rules. The Court held that there was no obligation of customary international law, nor any free-standing policy operating outside the Rules, which accrued to the advantage of de facto adoptive children. However (remitting the case for further consideration), MK had a case under Article 8 ECHR that had not received adequate consideration by the tribunal.

The Court of Appeal considered whether the application of an "insurmountable obstacles" test of proportionality in the context of applications based on the Article 8 ECHR right to family life was an error of law. The Court held (following EB (Kosovo)) that, in assessing the proportionality of a removal which might break up a family unless the family decamped, the material question was not whether there was an insuperable obstacle to the family’s relocating, but whether it was reasonable to expect the family to do so. In some circumstances, the hardship of this dilemma itself had to be recognised and evaluated. For a removal to be disproportionate what had to be shown was more than mere hardship, difficulty or obstacle; the obstacle must go beyond matters of choice or inconvenience.