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Art 33 Status of Refugees 1951 Convention claims should be brought at the same time as Art.1(F)(c) claims

Published:

Re: R (YASSER AL-SIRI) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2021] EWCA Civ 113

The Home Secretary appealed against a decision quashing her refusal to grant the respondent (Y) refugee status.

In 2015 the First-tier Tribunal decided that Y was not excluded from the Convention relating to the Status of Refugees 1951 (United Nations) and that he was a refugee. The Upper Tribunal upheld that decision. In 2018 the Home Secretary decided that, notwithstanding that decision, Y did not qualify for refugee status because there were reasonable grounds for regarding him as a danger to UK security within art.33(2). He was granted restricted leave to remain for six months, subject to conditions, because his removal would breach his rights under ECHR art.3. Y applied for judicial review, arguing that the Home Secretary’s decision not to give effect to the FTT’s judgment was unlawful, and that there was no fresh evidence; the Home Secretary had relied upon matters which were available to the FTT or added nothing. His application was granted because there were insufficient new facts to justify a departure from the FTT’s ruling. The judge also found that Y was entitled to apply for judicial review rather than appealing again to the FTT. The Home Secretary’s decision was quashed.

The Home Secretary argued that (1) there was no general principle that any case under art.33(2) should be brought at the same time as resisting a claim to refugee status on any other basis; (2) fresh evidence that would pass the test in Ladd v Marshall [1954] 1 W.L.R. 1489, [1954] 11 WLUK 110 was unnecessary because it was a fresh assessment of a new issue.

 

Held: appeal dismissed. A claim under the Convention relating to the Status of Refugees 1951 (United Nations) art.33(2) that an applicant for refugee status was a risk to UK security should be brought at the same time as a claim under art.1(F)(c) that they were excluded from the Convention. The ratio of that decision recognised the broad principles of finality and proper use of process applicable in the public law sphere just as in the private law context: a party had to bring before the court their entire case, would be bound by the resulting decision, and would not be permitted to re-open that decision on the basis of matters which could have been raised.

The starting point was that an unappealed tribunal decision was final and binding and had to be accepted and implemented by the Home Secretary, unless there was a good basis for impugning it. Both the binding nature of the decision and the high hurdle for re-opening it were aspects of the principle of finality. The new matters did not satisfy the second limb of the Ladd v Marshall test.

Raza Hussain QC was involved in this case.