FA is an Iraqi national, and arrived in the UK as a minor. The SSHD granted him leave to remain until six months before he reached majority in accordance with her policy on unaccompanied minors. His total leave exceeded one year and his claim for protection was dismissed. This meant he was entitled to bring an ‘upgrade appeal’ pursuant to s83 of the Nationality Immigration Asylum Act .
A series of tribunal decisions stretching back several years had consistently held that the scope of an upgrade appeal is limited to refugee grounds only. In other words, an appeal against the refusal of a protection claim – where leave for more than one year had been given – could not be brought on the basis that an individual would be at real risk of a breach of human rights, or that s/he was entitled to subsidiary protection status because of a real risk of indiscriminate violence emanating from armed conflict (‘Qualification Directive’).
FA challenged the above understanding, arguing he could pursue a section 83 appeal on any ground that afforded him a status recognised in law. Unlike human rights protection, International/EU/domestic law afforded him the possibility of refugee status, and EU law the benefit of subsidiary status pursuant to the Qualification Directive both of which carried a basket of entitlements.
The Court of Appeal accepted FA’s argument that he was entitled to pursue an appeal on both of the above grounds because claims based on EU law must not be subject to rules that are less favourable than those based on claims which have national law as their source i.e. FA’s inability to pursue an appeal on subsidiary status grounds at the same time as an appeal for refugee status was in breach of the EU principle of’ ‘equivalence’; an exception to the procedural autonomy of member states which seeks to guard against the possibility that states obviate their EU law obligations by enacting less favourable domestic provisions.
The SSHD challenged the Court of Appeal’s judgment arguing in essence that there is no purely domestic measure against which a comparison of the rules applicable to claims for humanitarian protection can be made.
The Supreme Court unanimously decided that a number of issues arose in the appeal that made it necessary to refer a preliminary ruling to the ECJ under Article 267 of the Treaty.
The critical question in the appeal was whether the principle of equivalence requires that a right of appeal must be available against the decision to dismiss FA’s application for subsidiary protection. This in turn depends on whether there is a comparable domestic right which is subject to more favourable rules than his subsidiary protection right. Lord Kerr, delivering the judgment of the panel presented the questions to be resolved this way:
‘16. The issue has a number of aspects. Must the claim to asylum, in order to qualify as an effective comparator, be based exclusively on domestic or national law? Or is it sufficient that it partake partly of a national law and partly of EU law? If it is a measure that is given effect in domestic law in the fulfilment of a member state’s obligations under a treaty, does this affect its status as a potential comparator? How similar must the rights under domestic and Community law be? If there is a more marked similarity between the Community right and a human rights claim, how does this affect the application of the principle of equivalence?’
The Court canvassed the main arguments on either side in answer to each question, noting in particular a long line of ECJ authority about the nature and application of the ‘equivalence principle’. In the end however the Court stressed that essential questions had not been directly addressed by the ECJ and for that reason a reference was deemed necessary.
The parties have 28 days to frame the questions put to the ECJ. It’s likely they will reflect the questions posed by Lord Kerr cited above. This reference arguably drills deeper than clarifying the nature and scope of the principle of equivalence. It may provide the ECJ cause to work through and explain the legal relationship between international; domestic and EU law structures as they apply to the same or different forms of protection: potentially knotty, yet very interesting legal questions.