IAAS caselaw Flashcards
Sivakumaran [1987] UKHL
Standard of proof in asylum claim = reasonable degree of likelihood.
Lord Keith “In my opinion the requirement that an applicant’s fear of persecution should be well-founded means that there has to be a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country.”
Adan [1998]
Lord Slynn “… well-founded fear must, as I read it, exist at the time his claim for refugee status is to be determined… The existence of what has been called an historic fear is not sufficient in itself, though it may constitute important evidence to justify a claim of a current well-founded fear.”
Lord Lloyd “where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country. He must be able to show…a differential impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare.”
Adimi [2001] QB
This case considers in what circumstances refugees can benefit from protection from prosecution under Art 31.
Whilst considering one of the requirements of Art 31, that the refugee must have “come directly from the country of persecution”, Brown LJ rejected the argument that a refugee must claim asylum in the first safe country reached. Para 18: “some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there… and whether or not the refugee sough or found there protection…”
This has broader application.
Horvath [2000] UKHL
Facts: Roma man from Slovakia claimed asylum on basis that he feared persecution by skinheads.
On sufficiency of protection
The sufficiency of state protection should be measured by “the availability of a system for the protection of the citizen and a reasonable willingness by the state to operate it”
On whether state protection relevant to the “fear” part of the Art 1A(2) definition
Lords Hope and Clyde gave leading judgments that the sufficiency of state protection is relevant to the “fear” test. Lord Clyde “If consideration of the state’s attitude is excluded from the definition of persecution and considerations in the first part and confined to the well–foundedness of the fear, then it would seem that some cases which ought to justify asylum would be excluded…. If the state was motivated by considerations which were contrary to the Convention rights to tolerate such activity and deliberately refrain from protecting the person, such a case would appear not to be covered by the approach promoted by the appellant. That does not seem to be sound.”
Lord Lloyd, dissenting, considered that this “holistic” or “constructive” approach to the definition of persecution was wrong, and that the formula should be “Persecution for a Convention Reason + Failure of State Protection = Refugee Status”, not “Persecution = Serious Harm + the Failure of State Protection.”
HJ (Iran) [2010] UKSC
if asylum seeker would not live openly due to fear of persecution (or where this is a material reason), they are a refugee
Shah and Islam [1999] UKHL
Pakistani women = PSG. Cohesiveness is not a requirement of a PSG. The fact that some members of a group can escape persecution does not mean it is not a PSG.
Skenderaj [2002] EWCA
Albanian blood feud - failure to seek State protection “The critical factor in cases where a victim of non-state persecution is unwilling to seek state protection is not necessarily whether the state is able and willing to provide a sufficiency of protection to the Horvath standard, though in many cases it may be highly relevant to the victim’s well-founded fear of persecution. The test is whether the potential victim’s unwillingness to seek it flows from that fear.“ Straightforward family feud does not engage protection of Refugee Convention: even if family is a PSG, fear of persecution is not because of membership of family, but because of fear of reprisal.
K and Fornah [2006] UKHL
K (Iran): the case concerned the issue of whether ‘family’ constitutes a particular social group. The applicant was recognised as a refugee on the basis of her well founded fear of persecution as a member of her husband’s family. “It is not necessary to prove that the primary member of the family of which the asylum seeker is also a member is being persecuted for a Convention reason. Nor need it be proved that all other members of the family are at risk of being persecuted for reasons of their membership of the family, or that they are susceptible of being persecuted for that reason.”
Fornah (Sierra Leone): fear of FGM. Uninitiated indiginous females in Sierra Leone are a PSG.
SB (Moldova); SB (PSG - Protection Regulations - Reg 6) Moldova CG [2008] UKIAT
This case was the first application of Art 10 of the Qualification Directive in the UK to a case involving human trafficking. The Tribunal found that trafficking victims are capable of being members of a Particular Social Group and that both sub paragaphs of Art 10(d) must be satisfied.
JT (Cameroon) [2008] EWCA
s.8 AI(ToC)A 2004. The Court of Appeal considered a piece of legislation that required judges and decision-makers to “take into account, as damaging” to an asylum application’s credibility, certain specified behaviour, including the failure to claim asylum in a safe third country. The Court held that the relevant legislation must be interpreted in a way which is consistent with constitutional principles and which allowed the judiciary to make a global assessment of credibility in the individual case. If the legislation was interpreted as a direction it would risk distorting the fact-finding exercise conducted by the judiciary.
AH (Sudan) [2007] EWCA
The House of Lords test in Januzi (see separate summary) for assessing internal protection was approved. In assessing whether the proposed area of internal relocation was unreasonable or unduly harsh it was an error of law to require that the circumstances would result in a breach of Art 3 of the ECHR or that the circumstances will be worse than the circumstances experienced by anyone else in that country.
Januzi [2006] UKHL
In assessing whether an applicant could obtain internal protection to avoid persecution, decision makers should consider whether it would be unreasonable or unduly harsh to expect the applicant to relocate to another part of their country. Decision makers should not make the assessment by comparing the conditions in the area of internal relocation to international human rights law standards or the conditions in the country of refuge. Rather, the starting point should be the guidance contained in the UNHCR Guidelines on International Protection (July 2003). Where the persecution emanated from the state all relevant factors had to be considered. It could not be said that there was no option of an internal relocation alternative on the basis of the presumption that the state can act throughout its territory.
Danian [1999] EWCA
The 1951 Refugee Convention should not be interpreted so that a refugee sur place who has acted in bad faith is excluded from its protection and can be deported to his home country notwithstanding that he or she has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although such an applicant’s credibility is likely to be low and the claim must be rigorously scrutinised, he or she is still entitled to the protection of the Convention if a well-founded fear of persecution is accepted.
Ahmed [2002] UKIAT
This decision established that the burden of demonstrating the reliability of documents adduced in an asylum case lay on the applicant. Only when an allegation of forgery was made and it was necessary to determine whether the documents were forged did the burden shift to the Home Office. In that case the standard was the balance of probabilities.
TR (Sri Lanka) [2008] EWCA
fresh claim IR 353. Sri Lankan - further submissions based on letters from Tamil Tigers. Sedley and Keene LJJ referred to the intensity of the court’s review in fresh claim cases. The Secretary of State’s margin of appreciation was slenderer than in other judicial review contexts, given that the Home Secretary acted as judge in her own cause in reaching the decision under attack; because the matters ordinarily relevant to whether a claim is a fresh claim are matters which a court is for the most part at least is as well equipped as the Home Secretary to deal with; and these are potentially matters of life and death.
A, R v LB Croydon [2009] UKSC
who is the ultimate arbiter of whether or not an individual is a “child” such that they might be determined to be a “child in need” under the Children Act 1989 - the courts (on BOP), or the LA (subject only to JR on Wednesbury grounds)? Decision is for courts, because it is a factual question of whether person is child or not.
Elgafaji [2009] ECJ
Art 15(c) QD. Fled Iraq after uncle killed and threatening letter on door. Had worked for British security firm. In Art 15(c) cases, twofold analysis of objective risk in country, and personal circumstances of claimant. Applicants for subsidiary protection are not requried to establish evidence of a specific threat to their lives. Instead, the existence of such a threat can be considered if the indiscriminate violence reaches such a high level that if an individual is returned to the relevant country or region, he would face a real risk of being subject to a serious and individual threat.
Said (Article 1D: meaning) Palestinian Territories [2012] UKUT
1) Because of the wording of the Qualification Directive, Community law looks outside itself for the interpretation of article 1D, and the CJEU’s pronouncement on the meaning of this aspect of refugee law is a pronouncement on the autonomous meaning of article 1D.
2) Following the CJEU’s reversal of the operative part of the decision of the Court of Appeal in El-Ali [2002] EWCA Civ 1103, the other elements of the latter decision may need to be reconsidered, possibly along the lines set out by the Advocate General in Bolbol v Bevándorlási és Állampolgársági Hivatal Case C-31/09.
Rahimi [2005] EWHC
threshold for ‘realistic prospect of success’ for a fresh asylum or human rights claim is a low one. Here, original of newspaper article submitted, along with expert opinion which said it “could well be genuine”.
