RR, a Syrian national, applied for international protection in the UK primarily due to risks arising from her father’s known involvement with the Muslim Brotherhood in Syria. SSHD refused her application and intended to remove her either to Syria or to Algeria.RR appealed.
By the time the matter came before the tribunal SSHD confirmed she proposed to remove RR to Algeria because of ties there – RR’s husband and three children were Algerian nationals and she had recently lived in Algeria for a few months.
The IJ was satisfied that RR had a well-founded fear of persecution in Syria and that she was “a refugee…with no prospect of obtaining the protection of a country other than the United Kingdom”.
In deciding that the claimant could not be removed to Algeria it was held that the IJ erred in law by merely relying upon the acceptance by the Presenting Officer that “he had no evidence … that the claimant had any prospect whatsoever of obtaining entry to Algeria.” The IJ was obliged to determine risk on a hypothetical basis even though there was little or no possibility at the time of the hearing that removal would be effective in the sense that RR would be admitted into the territory.
Risk in Syria only: entitled to asylum?
The legal issue before the tribunal therefore was whether RR was entitled to ‘international protection’ or asylum. On the one hand, she had established that she was refugee because of a real risk of persecution if returned to Syria. On the other there was a third country where the SSHD contended RR could live safely with her family.
In determining what the above meant, the tribunal was bound, in particular, by the recent decision in ST (Eritrea) v SSHD  EWCA Civ 643. Here the Court of Appeal held that the fact an individual is found to be a refugee does not of itself entitle a claimant to the grant of asylum. Article 32 of the Refugee convention (which says that contracting states shall not expel a refugee lawfully in their territory save on specified grounds) only applies to a refugee who has been given the right lawfully to stay in the Contracting State in question (i.e. asylum).
For RR, this meant that although she fulfilled the definition of a refugee because she had established an objective risk of persecution in Syria, she was not entitled to asylum in the UK for that reason alone because of the possibility of removal to a place where she would be safe.
Risk in Algeria?
The tribunal subsequently considered whether RR would be at risk in Algeria. It found on the evidence that RR was at real risk of indirect (or chain) refoulement by Algeria to Syria. Such a risk would make her removal to Algeria in direct contravention of Article 33(1) of the Refugee Convention and so contrary to the United Kingdom’s obligations under the Refugee Convention and the European Convention of Human Rights.
The tribunal gave a number of reasons why Algeria would not be a safe third country for RR in light of the facts and the country material made available. Of particular interest however is the emphasis given to that the fact that the Secretary of State was able to obtain an opinion from an Honorary Legal Advisor to the Algerian Embassy which noted that co-operation agreements between the Algeria and Syria covered security aspects and, in the Honorary Advisor’s own words, “Algeria would in this context, hand over opponents of the Syrian regime”. Given the appellant’s family profile it was considered reasonably likely that RR could be seen to fall under such agreements.
From paragraph 9 to 11, the tribunal made three observations which are worth noting. First, the tribunal was not concerned with every category of case in which Immigration Judges are required to consider a claimant’s situation in more than one country. In particular, it was not dealing with the situation that arises when a claimant has dual or multiple nationality.
Secondly, different considerations apply in cases (such as the instant case) in which the claimant has only one country of nationality but where the Secretary of State in the course of the appeal proceedings has proposed more than one country of destination.
Thirdly, the type of case with which concerned the tribunal in RR, involving intended expulsion of a refugee, tends only to arise as a matter of international state practice in situations where the person concerned has some connection with the third state which is said to be safe, based on nationality, prior residence, marriage, entitlement to residence, historical ties etc. It does not arise simply because there is a safe third country somewhere.