RR (refugee-safe third country) Syria

Factual and Procedural Background

The Respondent, a national of Syria born on 21 March 1977 and married to an Algerian national with three children, claimed asylum in the United Kingdom. On 5 June 2008, the Secretary of State decided to remove the Respondent from the UK, rejecting her asylum claim, and proposed removal either to Syria or Algeria. The Respondent appealed, and on 25 July 2008, an Immigration Judge (IJ) allowed her appeal on asylum, humanitarian protection, and Article 3 ECHR grounds, finding her a refugee from Syria with no prospect of protection from another country. The Secretary of State clarified the intended removal destination as Algeria.

The Secretary of State obtained an order for reconsideration, and on 29 October 2008, the Tribunal found the IJ had materially erred in law by improperly placing the burden of proof on the Secretary of State regarding the prospect of entry to Algeria and misunderstanding the legal test under s 84(1)(g) of the Nationality, Immigration and Asylum Act 2002. The IJ was also found to have erred by allowing appeal on both asylum and humanitarian protection grounds simultaneously. The case was listed for a stage 2 determination, with directions to submit relevant authorities and information on Algerian family reunion law.

The hearing before the Upper Tribunal focused on the application of Articles 32 and 33 of the Refugee Convention, and the case was remade under the Immigration and Asylum Chamber following legislative changes effective 15 February 2010. The Tribunal awaited the Court of Appeal judgment in Secretary of State for the Home Department v ST (Eritrea) [2010] EWCA Civ 643, which was binding and clarified key legal points relevant to this appeal.

Legal Issues Presented

1. Whether Article 32 of the Refugee Convention applies only to refugees granted leave to enter and stay in the UK, as clarified in Secretary of State for the Home Department v ST (Eritrea).
2. Whether a claimant with multiple nationalities qualifies as a refugee if they can avail themselves of protection from another country of nationality.
3. Whether the Secretary of State may propose more than one country of removal destination in an asylum appeal when the claimant has a single nationality.
4. Whether a claimant who is a refugee from their country of nationality is entitled to protection under Article 33 against removal to a safe third country.
5. Whether an immigration judge can consider removal to a country not specified in the notice of decision under appeal.

Arguments of the Parties

Appellant's Arguments

• The Respondent is a refugee from Syria with a well-founded fear of persecution based on political opinion.
• The Respondent would face a real risk of persecution if removed to Algeria, including indirect refoulement to Syria.
• The Respondent lacks a passport, entitlement to Algerian citizenship, and a significant period of residence in Algeria, undermining prospects of protection there.
• Evidence from the Honorary Legal Advisor to the British Consulate in Algeria indicates that Algeria cooperates with Syria in handing over political opponents, increasing the risk of harm.
• The Respondent would not meet the residence requirements for naturalisation in Algeria and would face difficulties obtaining entry visas or protection.

Appellee's Arguments

• The Secretary of State concedes the Respondent meets the definition of a refugee under Article 1 of the Refugee Convention.
• The Respondent would not face a real risk of persecution or serious harm in Algeria and could obtain protection there.
• Algerian authorities would be aware of the Respondent’s family ties and could provide a route for residence and naturalisation.
• Decisions on Algerian protection should be made on a case-by-case basis, and no evidence was presented to demonstrate a real risk of indirect refoulement.
• The co-operation agreements between Syria and Algeria concern criminals and terrorists, which do not include the Respondent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Secretary of State for the Home Department v ST (Eritrea) [2010] EWCA Civ 643	Article 32 applies only to refugees granted lawful leave to enter and stay; clarified the application of s 84(1)(c) and (g) regarding removal to safe third countries.	Binding authority; court applied its principles to clarify that being a refugee does not automatically entitle asylum or protection under Article 32 without lawful presence.
JN (Cameroon) [2009] EWCA Civ 643	Permissibility of proposing more than one country of removal destination in asylum appeals.	Supported the Tribunal's jurisdiction to consider multiple proposed removal destinations.
GH [2005] EWCA Civ 1182	Burden of proof and hypothetical nature of removal decisions under s 84(1)(g) of the 2002 Act.	Instructed that burden of proof lies with the claimant and that travel documentation is irrelevant at the removal directions stage.
HH and Others (Somalia) [2010] EWCA Civ 426	Travel documentation is not a material issue in removal decisions.	Confirmed the principle that travel documents are irrelevant to the hypothetical assessment of removal risk.
MS (Palestinian Territories) v Secretary of State for the Home Department [2010] UKSC 25	Travel documentation and lawful presence considerations in refugee status determinations.	Supported the approach limiting Article 32 protection to those lawfully present.
R v Secretary of State for the Home Department ex parte Adan and Aitsegeur [2000] UKHL 67	Prohibition of indirect refoulement under Article 33 of the Refugee Convention.	Confirmed that removal to a country which would then remove the person to a place of persecution breaches Article 33.
R (Yogathas) [2002] UKHL 36	Reaffirmation of the principle against indirect refoulement.	Supported the interpretation of Article 33 protections against indirect removal to persecution.
TI v United Kingdom [2000] INLR 211 (ECtHR)	European Court of Human Rights confirmation of indirect refoulement prohibition.	Used to reinforce Article 33 protections in the context of human rights law.
Szoma v Secretary of State for Work and Pensions [2005] UKHL 64	Interpretation of Article 32 and lawful presence requirements.	Referenced to support that Article 32 applies only to refugees lawfully present under domestic law.
JA (Ivory Coast) and ES (Tanzania) v Secretary of State for the Home Department [2009] EWCA Civ 1353	Clarification of Article 32 application in UK law.	Supported the limitation of Article 32 protection to those granted leave to remain.
Saad, Diriye and Osorio v Secretary of State for the Home Department [2002] EWCA Civ 2008	Clarification that Tribunal decisions do not direct the Secretary of State to grant asylum.	Confirmed that Tribunal determinations do not bind the Secretary of State to grant asylum.
ZN (Afghanistan) and Ors v Entry Clearance Officer (Karachi) [2010] UKSC 21	Distinction between refugee status and formal grant of asylum.	Confirmed refugee status is separate from the grant of asylum, supporting the Court of Appeal’s approach.

Court's Reasoning and Analysis

The court began by acknowledging the Respondent’s status as a refugee under Article 1 of the Refugee Convention, a concession made by the Secretary of State. It then considered the binding Court of Appeal decision in Secretary of State for the Home Department v ST (Eritrea), which clarified that Article 32 of the Refugee Convention applies only to refugees lawfully admitted and granted leave to remain, not merely those found to be refugees.

The Tribunal emphasized that the Secretary of State may propose multiple removal destinations during appeal proceedings, but an immigration judge’s decision to allow an appeal must consider both the claimant’s refugee status from the country of nationality and whether removal to the proposed third country would breach Article 33 protections.

The Tribunal rejected the earlier Immigration Judge’s errors, including misplacing the burden of proof regarding entry to Algeria and allowing appeals on mutually exclusive grounds. It focused on the risk of indirect refoulement if the Respondent were removed to Algeria, given the political profile of her family and the cooperation between Algerian and Syrian authorities in handing over political opponents.

The Tribunal found the evidence credible that the Respondent would face a real risk of persecution in Algeria or indirect removal to Syria, with no effective protection available. This included the Respondent’s family history, the political situation in Syria, the Respondent’s use of false passports, and reports on Algeria’s treatment of refugees and cooperation with Syria. The Secretary of State’s own evidence from the Honorary Legal Advisor to the British Consulate supported this risk assessment.

Accordingly, the Tribunal concluded that Algeria is not a safe third country for the Respondent and that removal there would violate Article 33(1) of the Refugee Convention and her rights under Article 3 ECHR.

Holding and Implications

The Tribunal ALLOWED the appeal of the Respondent on asylum and Article 3 ECHR grounds.

The decision overturns the earlier Immigration Judge’s ruling and confirms that the Respondent cannot be removed to Algeria due to the risk of indirect refoulement to Syria. The ruling clarifies the application of Articles 32 and 33 of the Refugee Convention in cases involving proposed removal to a safe third country and confirms the proper burden of proof and jurisdictional limits in removal appeals. No new precedent was established beyond the application of existing binding authority, but the decision has direct effect in protecting the Respondent from removal to Algeria.