UK - Court of Appeal, 18 June 2010, FA (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 696

What was at stake

EDAL summary. In UK domestic law, if a person has made a claim for asylum but his claim has been rejected by the Secretary of State, but he has been given leave to enter or remain in the United Kingdom for over a y...

What happened

The applicant, an Iraqi national born in Kirkuk in 1991, arrived in the UK as an unaccompanied minor in August 2007 and claimed asylum. His asylum claim was rejected, but he was granted Discretionary Leave for three years. He appealed the rejection on the grounds that his removal would breach the 1951 Convention and that he was entitled to subsidiary protection.

What the court decided

The Court held that the right to appeal under s.83 of the Nationality, Immigration and Asylum Act 2002 cannot be limited to refugee status alone but must also include the right to appeal on the basis of entitlement to subsidiary protection. This follows from the EU law principle of equivalence, which requires that procedural protections for subsidiary‑protection claims be at least as favorable as those for refugee claims. Accordingly, the statute must be interpreted consistently with the Qualification Directive, so that an applicant who has been refused asylum but granted leave to remain for over a year can challenge the refusal of humanitarian protection before the Tribunal. The appeal was therefore allowed and the case remitted to the First‑Tier Tribunal for a hearing.

How the court got there

The Court held that the right to appeal under the Nationality, Immigration and Asylum Act 2002 must include the right to appeal for subsidiary protection, not just refugee status. This interpretation aligns with the EU law principle of equivalence, which mandates that procedural protections for subsidiary-protection claims must be at least as favorable as those for refugee claims.

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