- BY Jed Pennington
Serious crime enough for humanitarian protection to be revoked
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A serious crime is enough for humanitarian protection to be revoked, the Upper Tribunal has held. The case is Kakarash (revocation of HP; respondent’s policy) [2021] UKUT 235 (IAC).
Appeal against loss of humanitarian protection initially allowed
Mr Kakarash, an Iraqi national, came to the UK as a child and was granted humanitarian protection. In January 2019 he received a 15-month prison sentence for a conviction related to a stabbing following an argument in a Subway shop. His humanitarian protection was revoked.
His appeal was on the sole ground that the revocation decision breached the UK’s “obligations in relation to persons eligible for a grant of humanitarian protection”, under section 84(3)(b) of the Nationality, Immigration and Asylum Act 2002.
The First-tier Tribunal found that the crime was a serious one but the appellant did not constitute a danger to the community of the UK. Applying paragraph 339D of the Immigration Rules, he fell to be excluded from humanitarian protection. But the tribunal read the Home Office’s policy as more generous than the Rules, so that a person could only be excluded from humanitarian protection if they were convicted of a serious crime and they were a danger to the community.
Applying the principle that Mr Kakarash had a legitimate expectation that the Home Office would follow its own policy, the tribunal allowed his appeal.
Serious crime sufficient for revocation
The Upper Tribunal decided that the Home Office’s policy did not mean what the First-tier Tribunal thought it did. The policy was not more generous than the Immigration Rules:
Nowhere in the policy is there any indication that the respondent has chosen, notwithstanding the clear intention behind the Immigration Rules, to adopt a policy which would severely limit her ability to revoke the humanitarian protection status those who commit crimes. Instead, the policy reflects the respondent’s intention that decisions should be made consistently with the [Qualification Directive] and the Immigration Rules.
The First-tier Tribunal’s conclusion that the appellant’s crime was a serious one meant that he was excluded from humanitarian protection, and this was sufficient to dispose of the appeal.
No jurisdiction to allow appeal based on policy anyway
The Upper Tribunal could not resist the temptation to consider a second, more interesting legal issue, on the hypothetical basis of the meaning given to the policy by the First-tier Tribunal. The Secretary of State had argued that, following the changes made by the Immigration Act 2014, the First-tier Tribunal had no jurisdiction to decide whether the decision breached policy. This is because it can no longer allow an appeal on the basis that a decision is “not in accordance with the law”.
Mr Kakarash did not dispute this, but argued that under section 84(3)(b), “obligations” includes rights under the EU Charter of Fundamental Rights. Article 41 of the Charter includes a right to good administration, which protects legitimate expectations.
The Upper Tribunal rejected this argument for two reasons. Firstly, relevant “obligations” were not owed to the appellant under section 84(3)(b) because he was not eligible for humanitarian protection in the first place. He was not eligible for humanitarian protection because he was excluded for having committed a particularly serious crime. Secondly, the right of good administration concerns the actions of EU institutions, and not domestic institutions.
As observed in passing by the Upper Tribunal, one situation where it might be possible to rely on policies is in Article 8 appeals, when the issue of whether a decision is in accordance with the law is considered. Otherwise, where a relevant policy has not been considered or has been wrongly applied by the Home Office, it may be necessary to judicially review the decision and apply to have the appeal stayed pending the outcome of the judicial review.
1. When a court or tribunal is considering whether the revocation of P’s protection status breaches the UK’s obligations in relation to persons eligible for a grant of Humanitarian Protection, the first question is whether P is eligible for a grant of Humanitarian Protection.
2. P is not eligible for a grant of Humanitarian Protection if he is excluded from eligibility for any one of the reasons in paragraph 339GB(i)-(v) of the Immigration Rules (which transposed Article 17(1) of the Qualification Directive), including his commission of a serious crime or the fact that he constitutes a danger to the community or security of the UK.
3. The Secretary of State’s guidance on Humanitarian Protection (version 5, 7 March 2017) does not disclose an intention to adopt standards more favourable to P as regards exclusion from Humanitarian Protection. In particular, that guidance does not require that, in order to be excluded from Humanitarian Protection, an individual who has committed a serious crime must also represent a danger to the UK.
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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