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Don’t forget about Article 8 in asylum cases


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With so much focus on whether an asylum seeker has established a well founded fear of persecution in their country of origin, the question of whether their appeal falls to be allowed under Article 8 of the European Convention on Human Rights is often given only cursory attention.

However, it is not necessarily true that a person’s Article 8 claim will stand or fall along with their asylum claim. In each asylum case, there are a variety of separate considerations:

  • is there a well founded fear of persecution linked to a Convention ground? (refugee status)
  • is there a real risk the applicant will suffer serious harm? (humanitarian protection)
  • are there other factors, such as severe medical issues, which would mean removal would result in inhumane or degrading treatment or punishment? (discretionary leave on basis of Article 3)
  • are there very significant obstacles to re-integration? (private life within the Immigration Rules – paragraph 276ADE)
  • would removal from the UK disproportionately interfere with the applicant’s private and/or family life? (Article 8 outside the Rules).

Different factors are relevant to the different categories, albeit there will inevitably be a degree of overlap. Where there is overlap, the decision-maker should consider each matter separately under the different categories and explain why the relevant legal threshold has not been met. A particular set of circumstances may not amount to a well founded fear of persecution but could amount to very significant obstacles to re-integration, which is a much lower threshold.

In June 2018 the Scottish Court of Session endorsed this approach in KO v Secretary of State for the Home Department [2018] CSOH 71. The same principle has now been endorsed by the Court of Appeal in England and Wales in SA (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 53. This post, originally published in July 2018 following the decision of the Scottish court, has been updated to take into account the Court of Appeal’s decision.

KO was a fresh claim judicial review. The judge noted the lack of reference in a Home Office decision letter to any information potentially relevant to the Article 8 consideration of private life and held, at paragraph 8, that:

The humanitarian situation [in Iraq] set out in the information note of March 2017 is in my opinion very concerning and can reasonably be thought to give rise to questions of whether there would be very significant obstacles to the petitioner’s integration particularly in circumstances where he also has long standing medical problems which require medication and are likely to impact upon his employability. In reading the part of the decision letter dealing with private life, I can obtain no understanding of whether the respondent gave any thought to the humanitarian situation and problems which exist. She gave no reasons to explain why these conditions would not be considered very significant obstacles to the petitioner’s integration into Iraq standing the very serious humanitarian problems which are described in the KRG area. (emphasis added)

The court sent the case back to the Home Office for reconsideration.

SA (Afghanistan) was an appeal from a First-tier Tribunal decision. The Court of Appeal confirmed that whether a person is entitled to humanitarian protection and whether there are very significant obstacles to their re-integration in to their country of origin “are separate issues and must be addressed separately”. This was qualified somewhat by the acknowledgement that the decision on humanitarian protection may nevertheless be relevant and that it is appropriate to take this as the starting point when considering very significant obstacles.

In SAs particular case, “the arguments that were available to the appellant under Paragraph 276ADE were properly and sufficiently addressed by the FtT”. The appeal was therefore dismissed. The case nonetheless serves as a reminder that separate consideration is required.

This is often overlooked by decision-makers. A compartmentalised approach is very common. Country Policy and Information Notes are usually only referred to in the section of the decision dealing with refugee status or humanitarian protection. Medical issues are considered only through the prism of Article 3. There is rarely any recognition that such factors may be relevant to the Article 8 assessment. The decisions in KO and SA (Afghanistan) confirm that where a Home Office decision-maker or First-tier Tribunal judge has failed to demonstrate that they have given separate consideration to each discrete aspect of the case, this may justify overturning their decision.

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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Iain Halliday

Iain Halliday

Iain Halliday is an Advocate (the Scottish equivalent of a Barrister) at Themis Advocates. He specialises in public law, including immigration and asylum, retained EU law, human rights, and judicial review.