New Judgment: FA (Iraq) v SSHD  UKSC 22
25 Wednesday May 2011
On appeal from:  EWCA Civ 696
FA is an Iraqi national who arrived in the United Kingdom when he was 15 years old. He made an application for asylum which the Secretary of State refused on the grounds that his claim was not credible. The Secretary of State also considered whether FA qualified for humanitarian protection and / or discretionary leave to remain in the UK. Humanitarian protection is the domestic means of providing the ‘subsidiary protection’ which Directive 2004/83/EC, requires to be given to certain third country nationals and stateless persons. FA argued that he must be entitled to a right of appeal against the humanitarian protection decision since the lack of an appeal would mean that this claim, based as it was on European law, was being subjected to rules which were less favourable than those which applied to the asylum claim, such a claim being based on national law. The Supreme Court unanimously decides that a number of issues arise on the appeal which require a reference to the Court of Justice of the European Union for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union. The critical question on the appeal is whether the principle of equivalence requires that a right of appeal must be available against the decision to dismiss FA’s application for humanitarian protection. This in turn depends on whether there is a comparable domestic right which is subject to more favourable rules than his humanitarian protection right. This issue has a number of aspects, in particular: (i) whether the comparator with the European law claim must be a purely domestic measure; (ii) what is required in order that the compared measures may be regarded as sufficiently similar; and (iii) the source of the procedural rights of the asylum applicant. These three essential questions have not been directly addressed by the European Court of Justice and for that reason a preliminary ruling by them is required.