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On 23 and 24 February the Supreme Court will hear another Government appeal in an immigration case with an EU law dimension.  The case concerns the impact of EU law on the availability of an appeal in a case where humanitarian protection is sought under the EU Qualification Directive (2004/83/EC).

The applicant was born in Kirkuk in Iraq on 21 October 1991. In August 2007, when he was aged 15, he arrived unaccompanied in the UK and claimed asylum. In October 2007 the Secretary of State refused the claim for asylum and also decided that the applicant did not qualify for humanitarian protection under rule 339C of the Immigration Rules, but in accordance with the policy relating to unaccompanied minors, granted the applicant leave to remain until April 2009 (when he would have reached the age of 17 years 6 months). On the applicant’s appeal the Asylum and Immigration Tribunal held that the applicant had a right of appeal, under the Nationality, Immigration and Asylum Act 2002, s 83 , against the rejection of his asylum claim, but not against the refusal of humanitarian protection.

The applicant appealed to the Court of Appeal.  In response to the appeal the Secretary of State contended that the effect of ss 83 and 84 of the 2002 Act was that an appeal in this case had to be limited to the claim for asylum and that a challenge to a refusal of humanitarian protection could only be challenged by judicial review.

The Court of Appeal (Pill, Longmore and Sullivan LJJ, [2010] EWCA Civ 696; [2010] 1 WLR 2545) held, that under domestic law, the effect of s 84(3) of the 2002 Act was that the only legitimate grounds of an appeal under s 83 were that removal of the appellant from the UK would breach the UK’s obligations under the Convention relating to the Status of Refugees, thus limiting such an appeal to refusal of asylum ([13]-[15]).

However, this did not dispose of the appeal. The Directive was directly effective and had been incorporated into the Immigration Rules.  The applicant invoked the EU law principle of equivalence: that is, although it is for the domestic legal system to lay down rules governing actions intended to ensure the protection of rights conferred by Community law such rules must not be less favourable than the rule governing similar domestic actions (see T Tridimas, The General Principles of EU Law, 2nd ed, p.42).  It was said that, if a right of appeal was given in respect of the rejection of a claim for asylum, so should a right of appeal be given in respect of the refusal of a claim to subsidiary protection under the Directive, which was similar.

This argument was accepted by the Court of Appeal.  As Longmore LJ put it

“The humanitarian protection afforded by the Rules is essentially the same protection as afforded by the subsidiary protection afforded by the Directive. It is true that in one respect the Rules are wider since they include the concept of an unlawful killing as well as a court sentence of death but that is beside the point. The similar claim for the purpose of the principle of equivalence is not the self-same claim to subsidiary/humanitarian protection afforded by the UK Rules but the claim for that other species of international protection available under the Refugee Convention. If a right of appeal is given in respect of that, so should a right of appeal be given in respect of what the Directive calls subsidiary, and the Immigration Rules call, humanitarian protection” [23]

As a result, ss 83 and 84(3) of the 2002 Act were to be read as applying to a person who had sought subsidiary protection under the Directive as they applied to a person who had claimed asylum; and that, accordingly, the tribunal would be directed to consider the applicant’s appeal against the refusal of humanitarian protection

The appeal will be heard by Lords Phillips, Hope, Brown, Kerr and Dyson on 23 and 24 February 2011. The Supreme Court case details are here.