Decisions

Court of Appeal of England and Wales January 22, 2025 [2025] EWCA Civ 33

Disposition Appeal of the Secretary of State allowed: “For the reasons explained at [45] to [71] above, I would allow the appeal” (Males LJ, paragraph 88). Phillips LJ: “I agree.” Elisabeth Laing LJ: “I also agree, with one minor qualification.” The decision of the Special Immigration Appeals Commission that the revocation of his refugee status and the refusal of his further claim were unlawful was reversed. The Supreme Court refused permission to appeal on 5 June 2025: “The application does not raise an arguable point of law.”

The Special Immigration Appeals Commission had held the revocation unlawful because the Home Secretary had not balanced the danger D8 posed “against the cost, practicability and feasibility of any measures that might be taken to ameliorate the risk” and had not shown that revocation “was a measure of last resort” (paragraph 1). The Court of Appeal disagreed: “Once she has concluded that a refugee is a danger to national security, she is entitled to revoke his refugee status.” … “I accept that submission and would therefore allow the appeal” (paragraphs 2 and 3). Return to Iran was not in issue: “as SIAC found that D8 would face at least a real risk of torture if returned, contrary to Article 3 ECHR, and even the risk of a violation of his right to life under Article 2 ECHR, there is now no question of him being returned. Thus, whatever the outcome of this appeal, the Secretary of State accepts that some form of leave to remain will have to be granted to D8” (paragraph 12). The court put the principle in one sentence: “Put another way, we do not send people back to be killed or tortured even if they are a danger to the national security of United Kingdom” (paragraph 26). It drew the line between the two: “If it were not for the fact that to return him to Iran would put his life at risk and would expose him to a real risk of torture or other inhuman or degrading treatment, she would be entitled to refoule him.” … “Although refoulement is not possible, the Secretary of State was entitled to take the lesser steps of revoking D8’s refugee status” (paragraph 71).

Refugee status National security Article 3 ECHR Non-refoulement Refugee Convention Article 33(2)

Caution The label records that D8 lost this appeal. It does not mean that he may be sent to Iran: the Commission found a real risk of torture there, the Home Secretary did not challenge the finding, and the court recorded that there is “no question of him being returned”. What he lost was refugee status. The Commission had observed that “the distinction between full refugee status and the lesser form of discretionary leave which will have to be granted to him is significant”, a point the court was not asked to consider (paragraph 89). The court decided the appeal on the Commission’s open judgment and did not see the closed judgment or the closed material (paragraph 4).