(i) ‘Removal’ in s84 of the Nationality, Immigration and Asylum Act 2002 refers to enforced removal pursuant to directions issued by the Secretary of State and not to the possibility of an individual making a voluntary return to their country of origin or a part of that country.
(ii) A person (‘P’) who would be at risk on an enforced return but who could safely make a voluntary return is not outside P’s country on account of a well-founded fear of persecution. P is consequently not owed the obligation of non-refoulement in Article 33(1) of the Refugee Convention and cannot succeed on the ground of appeal in s84(1)(a).
(iii) In considering the ground of appeal in s84(1)(c), however, a court or tribunal must only consider whether P’s enforced removal would be unlawful under section 6 of the Human Rights Act 1998. P’s ability to return voluntarily to a part of the country to which he will not be removed is irrelevant to that ground of appeal.
(iv) The Secretary of State should, where possible, identify the place to which she intends to enforce removal; that location provides the proper focus for the issues which arise in the appeal.
(v) In Iraqi protection appeals, enforced removal is only currently possible to Baghdad International Airport because the authorities of the Independent Kurdish Region only accept voluntary returnees. Where P might safely return voluntarily to the IKR, that is determinative of the Refugee Convention ground of appeal (against him) but is irrelevant to the human rights ground of appeal, since the focus can only be on the safety of P’s enforced removal to Baghdad.
(vi) An undertaking by the Secretary of State not to remove P until it would be safe to do so (when he has acceptable Civil Status documentation or until he can be forcibly removed to the IKR, for example) cannot be accepted by the tribunal because to do so would impermissibly delegate to the respondent the legal claim which is for that tribunal to determine. That claim must be assessed by considering the safety of the only available route of enforced return, which is via BIAP.
Citations:
[2022] UKUT 37 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 07 June 2022; Ref: scu.677731