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Article 3 protects asylum seekers against removal even if they could leave voluntarily


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Where an individual would be at risk if forcibly returned to a part of his country of nationality, is it a valid answer to a protection claim that he might nevertheless avoid any such risk by returning voluntarily to another part of that country, even where he does not wish to do so?

No, says Upper Tribunal Judge Blundell in the case of SA (Removal destination; Iraq; undertakings) Iraq [2022] UKUT 37 (IAC). That individual would not be eligible for refugee status, but would be protected by Article 3 of the European Convention on Human Rights (ECHR).

Enforced removal only possible to Baghdad

SA is an Iraqi national from Kirkuk, who last resided in the Independent Kurdish Region (IKR). The Home Office refused his claim for asylum in the UK, and the First-tier Tribunal dismissed his subsequent appeal.

It is worth side-tracking for a moment to look at the country context. A Home Office country policy and information note on Iraq: Internal relocation, civil documentation and returns says that it can only enforce removals to the capital Baghdad. By contrast, the IKR authorities do not accept enforced returns: only those willing to return voluntarily to the Independent Kurdish Region can travel there directly. The Home Office also accepts that people need a Civil Status ID Card or an Iraqi National Identity Card “to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR”.

Going back to SA: all parties to the case agreed that removing him to Baghdad would violate his Article 3 ECHR rights because he did not have an identity document to stay there or to make the journey from there to Kirkuk or the IKR. When dismissing his appeal, however, the First-Tier Tribunal held that this was not a good enough reason to let him stay in the UK, because “difficulties arising from his forcible return via Baghdad airport would be entirely of his own making”. SA could “easily avoid” the risk by returning voluntarily direct to the IKR, bypassing Baghdad.

Possibility of voluntary return not relevant to Article 3 appeal

In the Upper Tribunal, Judge Blundell started by looking at section 84 of the Nationality, Immigration and Asylum Act 2002. Section 84 governs appeals against the refusal of a protection claim.

Such appeals are possible if the person can show that their “removal” would be against the UK’s obligations:

  1. under the Refugee Convention;
  2. in relation to humanitarian protection; and/or
  3. under the European Convention on Human Rights.

Removal in this context means “enforced removal”: AA & LK (Zimbabwe) v SSHD [2006] EWCA Civ 401. The judge commented:

In considering the grounds of appeal in s84(1), therefore, it is clear that a court or Tribunal is concerned with the consequences of enforced removal [i.e. to Baghdad] and not with the possibility of voluntary return.

Now, this was no help to SA insofar as he was claiming asylum. The Refugee Convention clearly defines a refugee as someone who is “outside the country of his nationality” due to a well-founded fear of persecution. SA, the judge pointed out, is not outside of Iraq because of a well-founded fear of persecution: he could safely return to the IKR. He is not, therefore, a refugee.

But there is no such problem in an appeal based on Article 3:

In order to succeed on the ground specified in s84(1)(c) of the 2002 Act, an individual must demonstrate only that his enforced removal would be unlawful under section 6 of the Human Rights Act 1998. The additional definitional hurdle in the way of an appellant who relies on the Refugee Convention ground of appeal is not present for an appellant who relies on the ECHR. In order to succeed on Article 3 ECHR grounds, he must only establish that his enforced removal would be unlawful under s6 because he would be subjected to torture or to inhuman or degrading treatment or punishment. In my judgment, it is immaterial to that question that the individual concerned might effect a safe voluntary return…

In this case, enforced removal could only be to Baghdad — and it was agreed this would be contrary to Article 3.

Home Office undertaking not good enough

The Home Office sought to displace the focus on where SA would be returned by providing an undertaking to the tribunal that it would not remove him until it is safe to do so. That might mean removal to Baghdad once he had secured an identity document, or enforced removal direct to the IKR when/if that became possible.

The Upper Tribunal found this undertaking to be impermissible, as it would “cut down the legal protection” to which SA is entitled at the date of the appeal. Removing SA to Baghdad was the only available option, and that option would violate his Article 3 rights. That’s that.

Permitting this undertaking would also mean, in effect, allowing the Home Office to resolve a material element of the appeal (whether removing SA would be contrary to his Article 3 rights). That is the tribunal’s job.

Can’t be removed but may stay in limbo

The judge’s findings mean that SA cannot be removed from the UK.

Upper Tribunal Judge Blundell made clear that he reached that “unattractive” conclusion “with no enthusiasm”, given that SA could avoid the risk of inhuman or degrading treatment by voluntarily returning to the IKR. The judge went on to stress that the Home Office has wide liberty as to what to do next for SA:

What leave the respondent should grant to a person in that position – who is perfectly able to return to a safe part of his country but refuses to do so – is a matter for her. It might well be thought that such a person is undeserving of any leave to remain, regardless of the outcome of such an appeal.

The Home Office might very well do that: try to keep SA in limbo, without any immigration status, until such time as he can be removed, although that would invite further legal challenge. Even if it does grant him some sort of leave, it almost certainly wouldn’t be in favourable terms (allowing work or access to public funds, for example).

Is this a helpful precedent?

The circumstances of this case were quite unusual. There won’t be many situations where someone would be at risk of inhuman or degrading treatment if forcibly removed by the Home office, but would have no such risk if they returned voluntarily.

It may, however, be favourable to failed asylum seekers who would be at risk on return by virtue only of being failed asylum seekers. They could be recognised as such by their country of origin if forcibly removed, but not if they were to return voluntarily.

That said, given the possibility of not being granted immigration status, or only a very weak form of permission, this is unlikely to be anyone’s preferred path towards regularising their presence in the UK.

The official headnote

(i) ‘Removal’ in s84 of the Nationality, Immigration and Asylum Act 2002 refers to enforced removal pursuant to directions issued by the Secretary of State and not to the possibility of an individual making a voluntary return to their country of origin or a part of that country.

(ii) A person (“P”) who would be at risk on an enforced return but who could safely make a voluntary return is not outside P’s country on account of a well-founded fear of persecution. P is consequently not owed the obligation of non-refoulement in Article 33(1) of the Refugee Convention and cannot succeed on the ground of appeal in s84(1)(a).

(iii) In considering the ground of appeal in s84(1)(c), however, a court or tribunal must only consider whether P’s enforced removal would be unlawful under section 6 of the Human Rights Act 1998. P’s ability to return voluntarily to a part of the country to which he will not be removed is irrelevant to that ground of appeal.

(iv) The Secretary of State should, where possible, identify the place to which she intends to enforce removal; that location provides the proper focus for the issues which arise in the appeal.

(v) In Iraqi protection appeals, enforced removal is only currently possible to Baghdad International Airport because the authorities of the Independent Kurdish Region only accept voluntary returnees. Where P might safely return voluntarily to the IKR, that is determinative of the Refugee Convention ground of appeal (against him) but is irrelevant to the human rights ground of appeal, since the focus can only be on the safety of P’s enforced removal to Baghdad.

(vi) An undertaking by the Secretary of State not to remove P until it would be safe to do so (when he has acceptable Civil Status documentation or until he can be forcibly removed to the IKR, for example) cannot be accepted by the tribunal because to do so would impermissibly delegate to the respondent the legal claim which is for that tribunal to determine. That claim must be assessed by considering the safety of the only available route of enforced return, which is via BIAP.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Nath Gbikpi

Nath is an immigration lawyer at Leigh Day Solicitors and a Visiting Fellow in Practice at the London School of Economics.