Abunar (Para 339C: "Country of return")

Factual and Procedural Background

This opinion concerns an appeal by the Secretary of State for the Home Department ("Appellant") against a decision granting humanitarian protection to the Respondent ("Claimant"). The Claimant, who claimed Syrian nationality and long-term residence in Egypt, sought asylum on the basis of a well-founded fear of persecution. The First-tier Tribunal Judge ("Judge Murray") found that the Claimant was Syrian, had lived in Egypt since childhood with lawful residence, but would not face danger if returned to Egypt. Despite rejecting the Claimant’s asylum claim on Convention grounds, the Judge granted humanitarian protection based on the situation in Syria.

The Secretary of State sought permission to appeal, which was initially refused except on one ground relating to the Judge’s failure to analyze why the Claimant could not be returned to Egypt despite findings that return there was safe. Permission was granted on that specific ground. This appeal was heard by the Upper Tribunal, which considered the proper interpretation of paragraph 339C of the Immigration Rules and the Qualification Directive regarding the country relevant for assessing risk of serious harm.

Legal Issues Presented

1. Whether paragraph 339C of the Immigration Rules correctly transposes the relevant provisions of the Qualification Directive concerning the "country of return" versus "country of origin" in determining eligibility for humanitarian protection.
2. Whether the First-tier Tribunal Judge erred by granting humanitarian protection without adequately addressing the possibility of the Claimant’s return to Egypt, a country found to be safe for him.
3. The proper interpretation and application of Article 15(c) and Article 18 of the Qualification Directive in the context of subsidiary (humanitarian) protection.

Arguments of the Parties

Appellant's Arguments

• The Judge adopted a flawed approach to credibility and the standard of proof.
• The Judge failed to explain why the Claimant could not be returned to Egypt lawfully despite finding it safe.
• The Judge’s grant of humanitarian protection did not address paragraph 339C of the Immigration Rules or paragraph 15(c) of the Qualification Directive, both of which do not restrict return to the country of nationality.
• Requested an adjournment on grounds of the Claimant’s vulnerability and lack of representation.

Respondent's Arguments

The opinion does not contain a detailed account of the Respondent’s legal arguments as he appeared in person and no submissions are recorded beyond his oral evidence.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Upper Tribunal analyzed the legal framework governing humanitarian protection under the Qualification Directive and its transposition into UK law via paragraph 339C of the Immigration Rules. The Tribunal noted that Article 15(c) of the Directive defines "serious harm" and Article 18 governs subsidiary protection eligibility, which applies to persons at real risk of serious harm if returned to their "country of origin" (defined as country of nationality or former habitual residence).

Paragraph 339C of the Immigration Rules uses the term "country of return," which is not defined but appears to refer to any country of proposed return, not necessarily the country of nationality. This discrepancy indicates that paragraph 339C does not correctly transpose the Directive’s provisions.

The Tribunal accepted that the Judge had no power to grant humanitarian protection under the Rules as worded but found that on the facts and the Directive’s proper interpretation, the Claimant qualified for humanitarian protection. The Tribunal dismissed the Secretary of State’s appeal accordingly, emphasizing that the Claimant’s entitlement arose from the situation in Syria, despite the possibility of return to Egypt.

Holding and Implications

The Upper Tribunal DISMISSED the Secretary of State's appeal, thereby upholding the grant of humanitarian protection to the Claimant.

This decision confirms that the term "country of return" in paragraph 339C of the Immigration Rules does not accurately reflect the Directive’s concept of "country of origin," which is pivotal in assessing eligibility for humanitarian protection. The ruling clarifies that a claimant may be entitled to humanitarian protection based on risks in their country of nationality, notwithstanding the possibility of return to another country where they have lawful residence and no risk of harm.

No new precedent was established beyond the specific interpretation of paragraph 339C and its application to the facts of this case. The direct effect is that the Claimant remains entitled to humanitarian protection, with support arrangements in place.