Upper Tribunal clarifies grounds of appeal available in protection status challenges

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The Upper Tribunal (‘UT’) has held that where an individual seeks to challenge the Home Office’s decision to revoke their protection status under s.82 of the Nationality, Immigration and Asylum Act 2002 (the ‘2002 Act’) they are able to appeal on both of the grounds set out in s.84(3) of the 2002 Act, regardless of what type of protection status has been revoked.

SA had claimed asylum in the UK in 2002 on the basis that she was a Saudi citizen, and would be at risk from the Saudi royal family were she to return there. SA and her dependent daughter were ultimately granted refugee status and indefinite leave to remain in 2014. In 2021, the Home Office revoked that status because information had come to light to suggest that SA was in fact a Yemeni citizen. SA appealed the Home Office’s decision under s. 82(1)(c) of the 2002 Act.

On appeal, the First-tier Tribunal (‘FTT’) found that SA had deliberately and dishonestly sought to conceal her Yemeni citizenship when she made her application for asylum and that the Home Office had been entitled to cancel her refugee status. Her appeal under s.84(3)(a) of the 2002 Act was therefore dismissed. The FTT nevertheless went on to allow SA’s appeal under s.84(3)(b) of the 2002 Act, finding that she was instead entitled to humanitarian protection because of the risks being returned to Yemen would pose to her.

The Home Office appealed to the UT, which held as follows:

  1. Due to the drafting of s. 84(3) of the 2002 Act, which provided that someone seeking to challenge revocation of their status could rely on “one or more” of the grounds set out therein, an appellant is able to rely on s. 84(3)(a) and (b) to found an appeal, even where their original protection status was based on their rights under the Refugee Convention and not their rights to humanitarian protection.
  2. However, the FTT was required to frame its enquiry by reference to the facts as asserted in the asylum application which SA had originally made. SA had only ever claimed to be a Saudi citizen. The FTT therefore had to consider the question of humanitarian protection on that basis. By considering the risk to SA as a Yemeni citizen, it had erred in law. The appropriate course for SA was to apply to the Home Office for protection status on the basis of her Yemeni citizenship.

The Home Office’s appeal was therefore allowed.

Katharine Elliot acted for the Home Office.

The judgment can be found here.

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