New asylum standards

The Qualifying Directive (QD)(Council Directive 2004/83/EC) of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection provided came into force on 10 October 2006. It was implemented in English law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI no 2525), which came into effect on 9 October 2006. The Regulations apply to all applications for asylum outstanding as at 9 October or made after 9 October and any appeals determined after that date. Ambiguity between the regulations and existing law should be resolved by direct recourse to the QD itself for clarification. Changes to the Immigration Rules (CM 6819) also come into effect on 9 October and apply to all applications made after that date.

The Directive and regulations: new standards

The purpose of the QD is to establish minimum standards for the determination of asylum claims and the grant of subsidiary protection '“ humanitarian and discretionary leave as it is called in the UK. Significantly, it provides for a legal status of subsidiary protection as opposed to the previous system whereby individuals would be granted humanitarian or discretionary leave as a result of a policy. The QD is not a replacement or successor to the Refugee Convention (called the Geneva Convention in the Immigration Rules and the Regulations). The QD states that it is based on the full and inclusive application of the Geneva Convention, but it does not purport to cover all the refugee rights that appear in the Geneva Convention. Preamble 8 and Art 3 refer to member states having the power to introduce or retain more favourable standards for determining who qualifies for protection.

Setting out a case

The Regulations are brief; the explanatory statement says that many of the QD provisions already appear in UK legislation. Critically, the QD and the Regulations provide extensive definition of various elements addressed in determining a claim, many of which broadly reflect the interpretation of the Geneva Convention that has evolved through the UK courts, but some of which are either more restrictive or could be interpreted to be more generous. In preparing applications or appeals for asylum/subsidiary protection, the QD, the Regulations and the Rule changes should be read in their entirety to ensure the case is properly set out.

Assessment process

Article 4 sets out the assessment process. This is reflected, and expanded, in paras 339I to 339M of the Rules, which incorporate the usual strictures on assessment of evidence, credibility, prompt disclosure and s 8 of the Immigration and Asylum (Treatment of Claimant's) Act 2004, but also establish a duty of co-operation between an applicant and the Home Office. A potential change in how claims are considered arises in para 339K, Art 4.4, where:

'The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the appellant's well-founded fear of persecution'¦ unless there are good reasons to consider that such persecution or serious harm will not be repeated. '

• Persecution or serious harm

Articles 6 and 7, repeated in regs 3 & 4define actors of persecution or serious harm and actors of protection respectively. They cover state, parties or organisations controlling the state or a substantial part of the territory or non state actor. Protection requires not just an existing effective system of protection but access to that system.

• Acts of persecution

Article 9, broadly repeated in reg 10 defines acts of persecution for the purposes of recognition as a refugee, requiring a linkage with at least one of the reasons in Art 1(A) of the Geneva Convention. Examples appear in both the Article and the Regulation, helpfully noted as examples in the Regulation. These provide statutory force to the link with human rights violations to the non-derogable ECHR rights of Arts 2, 3 and 4. Omitted from the Regulation, although specified in the QD, is an act of a gender or child-specific nature. It is unclear why this has been omitted, given the increasing awareness of the specific nature of some persecution as referred to in for example the UNHCR gender guidelines, Refugee Women's Legal Group gender guidelines and others.

• Reasons for persecution

Article 10, reflected in reg 6, sets out the reasons for persecution; there must be a connection with the act of persecution for someone to qualify as a refugee. It may be that there will be considerable litigation as to the exact prescriptive or restrictive nature of the definitions or considerations. It will be important to consider carefully the examples given for particular social group which appear more limiting than the previous interpretation of Art 1(A) of the Geneva Convention. This may well be an area where arguments are made that the QD cannot reduce existing standards. On the other hand the considerations in relation to religion and nationality appear to broaden the acceptance of what falls within these categories.

• Exclusion

Article 12 (reflected in reg 7) and 16 set out the criteria for exclusion from recognition as a refugee or from subsidiary protection.

• Subsidiary protection

Article 15 (reflected in para 339C of the Rules) defines serious harm for the purpose of assessing subsidiary protection; it must take place within the country of origin or be a serious or individual threat by reason of indiscriminate violence. This definition is narrower than the criteria currently used to found a claim for
protection under Art 3 of the ECHR.

Changes to the Immigration Rules

Paragraph 339O of the Immigration Rules reflects the judgment in Januzi v SSHD : Hamid v SSHD: Gaafar v SSHD : Mohammed v SSHD [2006] UKHL 5. The question is not whether the quality of life meets the basic norms of civil, political and socio-economic human rights, but whether it is reasonable or unduly harsh to expect the individual to relocate; this would take into account the standard of living of others in the proposed country of return. There is no presumption that persecution by or on behalf of the state is incompatible with internal relocation.

Paragraph 352AA incorporates family reunion principles for same sex and cohabiting couples.

Practitioners should not, because subsidiary protection can now be argued, ignore the ECHR. The determination process will now cover three stages:

• an assessment of whether someone qualifies for protection as a refugee,
• an assessment whether someone qualifies for subsidiary protection; and
• an assessment whether the proposed decision to remove is compatible with the person's human rights under the Human Rights Act 1998.

Although many cases which are now argued as Art 3 ECHR cases will fall within subsidiary protection there remain three types of cases where the ECHR remains critical: 'ill-health' cases (as in N v SSHD [2005] UKHL 31), cessation and exclusion cases (for example terrorists or those convicted of crimes who would face the death penalty) and Art 8 ECHR cases.

Assessing accounts on evidence

Finally, HK v SSHD [2006] EWCA Civ 1037, is a salutary reminder to practitioners, the Home Office and the AIT that just because an account seems incredible does not mean it didn't happen. This does not, however, mean that every incredible account is true. Evidence has to be scrutinised. All the elements of the account and the account as a whole should be considered against available evidence in relation to the country from which the asylum-seeker comes, reliable and good quality expert evidence, as well as other factors such as consistency of account and the nature and extent of any contradictions in the account. Practitioners, the Home Office and the Tribunal must guard against re-interpreting an account in the light of their own perceptions and assumptions and hence drawing conclusions that may well not be sustainable.

In preparing for a hearing, practitioners should scrutinise the account, ensure that they asked the expert to address the actual issues of concern rather than a generalised issue and ensure that they have identified and addressed the areas where the Tribunal is likely to have difficulty believing an account. A bald submission to the Tribunal 'although the account seems incredible it should be believed '“ see HK' is likely to be given short shrift.