JUDGMENT
FA (Iraq) (FC) (Respondent) v Secretary of State
for the Home Department (Appellant)
before
Lord Phillips, President
Lord Hope, Deputy President
Lord Brown
Lord Kerr
Lord Dyson
JUDGMENT GIVEN ON
25 May 2011
Heard on 23 and 24 February 2011
Appellant Respondent
Tim Eicke QC Raza Husain QC
Alan Payne Takis Tridimas
Nick Armstrong
(Instructed by Treasury
Solicitors)
(Instructed by Immigration
Advisory Service)
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LORD KERR, DELIVERING THE JUDGMENT OF THE PANEL
Introduction
1. FA is an Iraqi national who was born on 21 October 1991. He arrived in the
United Kingdom on 21 August 2007 when he was 15 years old. He was not
accompanied. He applied for asylum. On 9 October 2007 the Secretary of State
refused the application. The evidence that FA had supplied in support of his claim
was deemed not to be credible.
2. Having refused FA asylum, the Secretary of State then considered whether
he qualified for humanitarian protection and/or discretionary leave to remain in the
United Kingdom. Humanitarian protection in this context is the domestic means of
providing the ‘subsidiary protection’ which Council Directive 2004/83/EC of 29
April 2004 (the Qualification Directive) requires to be given to certain third
country nationals or stateless persons. It was decided that FA did not qualify for
humanitarian protection. He was granted discretionary leave to remain, however,
limited in time until he was seventeen years and six months old.
3. As he was entitled to under section 83(2) of the Nationality, Immigration
and Asylum Act 2002 (the 2002 Act), FA appealed to the Asylum and Immigration
Tribunal (AIT) against the refusal of his claim for asylum. Included in the grounds
of appeal, however, were claims that FA’s rights under articles 2, 3 and 5 of the
European Convention on Human Rights and Fundamental Freedoms would be
contravened if he was removed from the United Kingdom to Iraq. It was also
averred that he might suffer serious harm as defined in the Qualification Directive.
FA’s appeal was dismissed by Immigration Judge (IJ) Jhirad. The dismissal was
said to be on asylum grounds and humanitarian protection grounds.
4. FA applied to AIT for a reconsideration of his appeal. Senior Immigration
Judge (SIJ) Mather ordered that there should not be reconsideration of his appeal
on asylum grounds but that the issue of whether there would be a “serious and
individual threat to his life by reason of indiscriminate violence during internal
armed conflict” should be reconsidered. SIJ Mather felt that IJ Jhirad may not have
considered whether there was a risk of serious harm under the Qualification
Directive and para 339 of the Immigration Rules which incorporates into domestic
law the subsidiary protection provisions of the Qualification Directive.
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5. When the reconsideration application came on for hearing, AIT (IJs Lobo
and Cohen) held that the original appeal before IJ Jhirad should have been
confined to the refusal of the asylum claim. In their view, no appeal was available
to FA in relation to human rights claims or humanitarian protection grounds under
section 83 of the 2002 Act. That section provided for an appeal against the refusal
of the application for asylum only. On that account, AIT substituted IJ Jhirad’s
decision with a dismissal of the original appeal on asylum grounds only.
6. The focus of FA’s appeal against the decision of AIT to the Court of Appeal
was initially on the construction of sections 82 to 84 of the 2002 Act and the
question whether the decision of AIT deprived him of an effective judicial remedy
against an adverse act of the administration, contrary to general principles of
European Union law. Shortly before the hearing of the appeal, a supplementary
written submission was presented which developed the argument that the principle
of equivalence (a general principle of EU law) required that claims based on EU
law must not be subject to rules which are less favourable than those based on
claims which have national law as their source. It is this argument that principally
preoccupied the Court of Appeal and it held centre stage in the appeal before this
court.
7. Section 82 lists a number of immigration decisions from which, by virtue of
section 82 (1), an appeal will lie. Among these are a refusal to vary a person’s
leave to enter or remain (section 82 (2) (d)) and a decision that a person be
removed from the United Kingdom pursuant to various directions (section 82 (2)
(g)). FA could not have recourse to these because there had not been a relevant
refusal to vary the leave to remain that he had been given and there had not been,
at the time that the matter came before AIT (or for that matter the Court of
Appeal), a decision to remove him. None of the other decisions listed in section 82
(2) was relevant to his situation. (As it happens on 11 January 2011, the Secretary
of State rejected FA’s application for an extension of his discretionary leave so that
he now has a right of appeal under section 82(1) of the 2002 Act.)
8. Section 83 of the Act gives a specific right of appeal against a refusal of
asylum to a person who, like FA, has been granted leave to enter or remain for a
period exceeding one year. It was this right of appeal that FA had exercised in
appealing to AIT. Before the Court of Appeal Mr Raza Husain QC, for FA, had
argued that, by resort to normal canons of construction, section 83 could and
should be interpreted as including a right of appeal against a humanitarian
protection decision, particularly in light of the definition of ‘asylum claim’ in
section 113 of the 2002 Act. That argument was rejected by the Court of Appeal
and it has not been renewed before this court. The Court of Appeal held that,
although a section 83 appeal was a status appeal (i.e. one that depended on the
status of the person making the appeal as opposed to the species of decision
appealed against) it was nevertheless restricted to a particular class of persons,
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namely those who have been given leave to remain for at least twelve months.
Moreover, by virtue of section 84 (3) of the 2002 Act, the only grounds on which
the appeal could be taken were that removal of the person appealing would breach
the United Kingdom’s obligation under the Refugee Convention. These
considerations meant that section 83 could not be construed on any conventional
basis of interpretation as extending to an appeal against a humanitarian protection
decision.
9. Mr Husain’s alternative submission was accepted, however. In broad terms
it was to the effect that the principle of equivalence required that a right of appeal
against the humanitarian protection decision be recognised since the lack of an
appeal would mean that this claim, based as it was on EU law, was being subjected
to rules which were less favourable than those which applied to the asylum claim,
such a claim being based on national law. The Court of Appeal held that the
definition section (113 (1) of the 2002 Act,) which provides that ‘asylum claim’
means “a claim made by a person that to remove him from or require him to leave
the United Kingdom would breach the United Kingdom’s obligations under the
Refugee Convention” would have to have the words “and/or the Qualification
Directive 2004/83/EC” added to it. A similar addition to section 84 (3) was
required so as to enlarge the grounds on which the appeal might be brought.
10. The Secretary of State appeals against this decision on the ground that there
is no purely domestic measure against which a comparison of the rules applicable
to claims for humanitarian protection can be made. It is argued that such claims
have far closer similarities to those that are made under the Human Rights Act
1998. The Secretary of State further contends that the mooted comparators (the
asylum claim and the humanitarian protection claims) both have their origin in
Chapter VII of the Qualification Directive. Both therefore are rooted in EU law.
They do not spring from different sources and since that is the essential
requirement for the activation of the equivalence principle, it cannot be prayed in
aid in this instance.
The procedural autonomy of member states
11. In the absence of EU law stipulating a particular form of remedy to ensure
protection of EU rights, it is for member states to decide which courts or tribunals
will have jurisdiction to give effect to those rights and to prescribe the procedural
conditions necessary for their enforcement – article 19(1) of the Treaty on
European Union (TEU), Case 33/76 Rewe-Zentralfinanz eG v
Landwirtschaftskammer für das Saarland (Rewe I) [1976] ECR 1989, Case 45/76
Comet BV v Produktschap voor Siergewassen [1976] ECR 2043 and Preston v
Wolverhampton Healthcare NHS Trust (No 2) [2001] UKHL 5, [2001] 2 AC 455.
This is known as the procedural autonomy of member states.
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12. Procedural autonomy is subject to two qualifications. National rules may
not render the exercise of rights conferred by EU law virtually impossible to
achieve or excessively difficult to access. This is known as the principle of
effectiveness. Nor must national rules be less favourable than those governing
comparable domestic actions. This is the principle of equivalence.
The equivalence principle
13. It is no longer suggested in this appeal that FA does not have effective
access to his humanitarian protection or subsidiary rights. The effectiveness
principle is no longer in issue. The critical question now is whether the
equivalence principle requires, as the Court of Appeal decided it did, that a right of
appeal must be available against the decision to dismiss FA’s application for
humanitarian protection. This, in turn, depends on whether FA can demonstrate
that there is a comparable domestic right which is subject to more favourable rules
than is his humanitarian protection right.
14. In the particular circumstances of this case, this means that he must show
that his asylum claim is a legitimate comparator with his claim for humanitarian
protection. If he is able to demonstrate this, it is clear that the humanitarian
protection claim is subject to less favourable rules than the asylum claim. The
latter brings with it a status appeal. The humanitarian protection claim does not.
15. FA must do more than show that there is a difference between the two
claims in terms of the availability of a right of appeal, of course. He must also
establish that the proper basis of comparison exists. It is on this particular point
that crucial issue is joined between the parties.
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?
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Must the comparator with the Community law claim be a purely domestic
measure?
17. The nature of the required comparison exercise was described in the
judgment of the Court of Justice of the European Union in Rewe I in the following
passage, [1976] ECR 1989, para 5:
“Applying the principle of cooperation laid down in Article 5 of the
Treaty, it is the national courts which are entrusted with ensuring the
legal protection which citizens derive from the direct effect of the
provisions of Community law.
Accordingly, in the absence of Community rules on this subject, it is
for the domestic legal system of each Member State to designate the
courts having jurisdiction and to determine the procedural conditions
governing actions at law intended to ensure the protection of the
rights which citizens have from the direct effect of Community law,
it being understood that such conditions cannot be less favourable
than those relating to similar actions of a domestic nature.”
18. This formulation recognises the primacy of the role of the domestic legal
system in providing the necessary protection for Community rights, with what has
become known as the principle of equivalence being a qualification on that
autonomy. Its purpose is to ensure that there is no dilution of the adequacy of the
protection of the relevant rights and in that sense it is complementary to the
principle of effectiveness.
19. The principle of equivalence received somewhat fuller consideration by the
Court of Justice in the case of Case C-326/96 Levez v T. H. Jennings (Harlow
Pools) Ltd [1998] ECR I-7835. One of the questions referred to the Court of
Justice by the Employment Appeals Tribunal in that case sought guidance on how
the expression “similar domestic actions” should be interpreted in the field of
equal pay legislation. Advocate General Léger described the aim of the principle
of equivalence in para 26 of his opinion:
“The aim of this principle is that domestic law remedies should
safeguard Community law ‘without discrimination’ that is to say,
exercise of a Community right before the national courts must not be
subject to conditions which are more strict (for example, in terms of
limitation periods, conditions for recovering undue payment, rules of
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evidence) than those governing the exercise of similar rights derived
wholly from domestic law.”
20. In the present appeal, the Secretary of State draws particular attention to the
phrase “similar rights derived wholly from domestic law”. It is suggested that this
conveys clearly the notion that the proposed comparable right must originate
exclusively from a domestic source.
21. Similar expressions can be found in earlier jurisprudence of the Court of
Justice. In Joined Cases 205 to 215/82 Deutsche Milchkontor GmbH v Federal
Republic of Germany [1983] ECR 2633, para 19 the court said that “national
legislation must be applied in a manner which is not discriminatory
compared to procedures for deciding similar but purely national disputes.
(emphasis supplied)”. The expression “purely internal” in relation to the
national measure was also used in the later case of Case C-34/02 Pasquini v
Istituto Nazionale della Previdenza Sociale, judgment of 19 June 2003.
22. The respondent to the present appeal has drawn attention, however, to the
fact that neither “purely domestic” nor “purely internal” are used in the latest
decisions of the Court of Justice in cases involving the principle of equivalence. A
large number of cases have been cited by the respondent to support this
proposition. They include Joined Cases C-222/05 to C-225/05 Van der Weerd v
Minister van Landbouw, Natuur en Voedselkwaliteit [2007] ECR I-4233; Case C268/06 Impact v Minister for Agriculture and Food [2009] All ER (EC) 306; Case
C-445/06 Danske Slagterier v Bundesrepublik Deutschland, 24 March 2009; Case
C-118/08, Transportes Urbanos y Services Generales SAL v Adminisración del
Estado, 26 January 2010; Case C-542/08, Barth v Bundesministerium für
Wissenschaft und Forschung, 15 April 2010; Joined Cases C-145/08 and C149/08, Club Hotel Loutraki AE v Ethniko Simvoulio Radiotileorasis, 6 May 2010;
Case C-246/09 Bulicke v Deutsche Büro Service GmbH, 8 July 2010; and Case C429/09 Günter Fuß v Stadt Halle, 25 November 2010; Case C-568/08 Combinatie
Spijker Infrabouw/De Jonge Konstruktie, v Provincie Drenthe, 9 December 2010.
23. It is noteworthy (and, in the context of this particular debate, significant)
that in none of these decisions of the Court of Justice has the expression “purely
domestic” been expressly disavowed. Notwithstanding this, the respondent
confidently asserts that the Court of Justice has not definitively pronounced on the
question whether the national measure that is proffered as a comparator must be
purely domestic. Moreover, it is claimed that it would be unwieldy and impractical
to require the national court, as a condition of applying the principle of
equivalence, to inquire in every case whether a particular procedure was designed
exclusively for the protection of national rights. It is also argued that an insistence
on the compared right being uniquely domestic would give rise to anomalies in
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that a right based on national law that would qualify as a comparator might lose
that status if subsumed under an EU measure.
24. This issue has not been expressly addressed in any of the decisions of the
Court of Justice to which this court has been referred. One can acknowledge the
strength of the arguments on either side. On the one hand, there is a consistent line
of authority (which has not been renounced) to the effect that the domestic
measure must be precisely what the term suggests – a purely domestic provision. If
comparison with another Community law provision was possible, much of the
underlying purpose of the principle, it is argued, would be diverted. After all, the
essential reason for the development of the principle was that a Community law
right should not suffer disadvantageous treatment vis-à-vis national rights which
lie outside the field of Community law.
25. On the other hand, the aim of the principle is the elimination of
discrimination and it would be, it is suggested, anomalous if comparison with
another right was precluded because it could be branded as deriving partly form a
Community law source. Viewed as a complement to the principle of effectiveness,
the principle of equivalence should not be thwarted by the imposition of what
might arguably be said to be the artificial or technical requirement of a comparison
between a Community law right and one which is distinctively and exclusively
domestic.
What is required in order that the compared measures may be regarded as
sufficiently similar?
26. On the separate question of what is required in terms of similarity between
the Community law right and the domestic law right, at para 43 of its judgment in
Levez the Court of Justice said:
“In order to determine whether the principle of equivalence has been
complied with in the present case, the national court — which alone
has direct knowledge of the procedural rules governing actions in the
field of employment law — must consider both the purpose and the
essential characteristics of allegedly similar domestic actions (see
Palmisani, paragraphs 34 to 38)” [Palmisani v Istituto Nazionale
della Previdenza Sociale (Case C-261/95) [1997] ECR I-4025]
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27. The court went on to point out (in para 44) that it was for the national court
to examine the part played by the (avowedly similar) domestic measure in the
procedure as a whole, and to take account of any special features of that procedure.
28. The theme of the need for close similarity between the Community law
right and the domestic law right was taken up again in Case C-231/96 Edilizia
Industriale Siderurgica Srl (Edis) v Ministero delle Finanze [1998] ECR I-4951.
At para 36 of its judgment the Court of Justice said:
“Observance of the principle of equivalence implies, for its part, that
the procedural rule at issue applies without distinction to actions
alleging infringements of Community law and to those alleging
infringements of national law, with respect to the same kind of
charges or dues (see, to that effect, Joined Cases 66/79, 127/79 and
128/79 Amministrazione delle Finanze dello Stato v Salumi [1980]
ECR 1237, para 21). That principle cannot, however, be interpreted
as obliging a Member State to extend its most favourable rules
governing recovery under national law to all actions for repayment
of charges or dues levied in breach of Community law.” (emphasis
supplied)
29. On the basis of these statements, the Secretary of State argues that simply
because there is some similarity between the rights claimed, or because the rights
are of the same generic type, it does not follow that the principle of equivalence
comes into play. The juristic structure of the two rights under comparison must be
the same. In advancing this argument the Secretary of State relies on two domestic
authorities. The first of these is Matra Communications SAS v Home Office [1999]
1 WLR 1646 where at 1658H Buxton LJ said:
“… the principle of ‘equivalence’ really does mean what it says. The
domestic court, in applying the principle, must look not merely for a
domestic action that is similar to the claim asserting Community
rights, but for one that is in juristic structure very close to the
Community claim. It does that, in the words of the Court of Justice
in Levez v. T H. Jennings (Harlow Pools) Ltd. (Case C-326/96 )
[1999] I.C.R. 521, 545, para. 43, by considering ‘the purpose and the
essential characteristics, of allegedly similar domestic actions’.”
30. The second domestic case on which the Secretary of State relies is Preston
v Wolverhampton Healthcare NHS Trust (No 2)[2001] UKHL 5, [2001] 2 AC 455.
In that case the majority expressed doubts about the view favoured by Lord Slynn
of Hadley in his speech that a broad view of the exercise of comparing the
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domestic right with the Community law claim was permissible. Lord Slynn had
accepted that one should be careful not to accept superficial similarity as being
sufficient. He also accepted that it was not enough to say that both sets of claims
arose (as they did in that case) in the field of employment law. Nevertheless, he
considered that claims under the Equal Pay Act 1970 (which by virtue of article
119 of the Treaty and Council Directive (75/117/EEC) were Community law
claims) bore a sufficient resemblance to claims for breach of contract against an
employer so as to permit the possible application of the principle of equivalence.
31. Lord Clyde, with whom Lord Goff of Chieveley and Lord Nolan agreed,
thought that this conclusion was difficult to sustain. The appellants’ claim under
Community law was “concerned not with arrears of pay or other remuneration but
with retroactive membership for the applicants of an occupational pension
scheme” (para 43). In effect this required something to be added to the contract,
rather than being a claim for breach of contract. Lord Clyde thought that it was
extremely difficult to conclude that as between these two actions one would be
comparing like with like.
32. The Secretary of State relies on the Matra and Preston decisions as
authority for what is described as a “cautious approach” to the question of the
recognition of one form of action as a true comparator of a Community law claim.
It is argued that where there is a far more readily comparable action to the
Community law claim such as a human rights claim, the “allegedly domestic law”
refugee claim had even less to commend it as a proper comparator. There are, says
the Secretary of State, significant structural and substantive reasons why section 83
is not sufficiently close in its “juristic structure” to serve as an appropriate
comparator. The purpose and the essential characteristics of the alleged domestic
action are quite different. The Preamble to the Qualification Directive ([14]) and
the 1951 Refugee Convention make clear that the “recognition of refugee status is
a declaratory act” of a pre-existing right and, as a result, there is no discretion on
the part of the decision maker in the Member State. By contrast, “subsidiary
protection status” is a status which has been created by the Qualification Directive
and only arises upon a decision to grant such status. Furthermore, subsidiary
protection is only intended to be “complementary and additional to the refugee
protection enshrined in the Geneva Convention” (preamble [24]) and is only
available to those who do not qualify as a refugee. As a result, the Secretary of
State argues, the two are mutually exclusive.
33. The respondent disputes the claim that there is any significant or relevant
difference between the claim to refugee status and the claim for subsidiary
protection. It is argued that recognition as a person eligible for subsidiary
protection carries with it an entitlement to “subsidiary protection status” akin to the
refugee status that an applicant for asylum acquires. Moreover, the grant of that
status carries with it certain benefits while the human rights claim (which the
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Secretary of State suggests is a more suitable comparator) does no more than
prevent removal. At a fundamental level, both refugee status and subsidiary
protection exist to protect individuals from return to serious harm.
34. As to the effect of Matra and Preston the respondent counters the Secretary
of State’s claims by reference to more recent authority, particularly Byrne v Motor
Insurers’ Bureau [2009] QB 66 and Revenue and Customs Comrs v Stringer &
Ors [2009] ICR 985. In Byrne, the respondent claims, the Court of Appeal rejected
the narrow approach advanced by the defendant and found a sufficient similarity
between a claim for compensation against the Motor Insurers Bureau and an action
in tort. Mr Husain relied particularly on an observation by Carnwath LJ in para 27
of his judgment alluding to Buxton LJ’s statement in Matra that there should be a
close relationship between the juristic structures of the Community law right and
the domestic measure. Carnwath LJ said that he did not find it “helpful to argue in
the present case that the claim against the MIB has a different ‘juristic structure’ to
a claim in tort”.
35. I do not construe this as a rejection of the juristic structure approach to the
question, however. Carnwath LJ’s comment must be seen in its context. In Byrne
the court was dealing with a claim that the scheme for compensation for victims of
uninsured drivers should not be any less favourable than the system whereby
victims of drivers who were insured could claim compensation. It was also,
incidentally, confronted by a decision of the Court of Justice to the effect that the
protection provided by the national scheme must be equivalent to and as effective
as the protection available under the national legal system to victims of insured
drivers – Evans v Secretary of State for the Environment, Transport and the
Regions (Case C-63/01) [2005] All ER (EC) 763; [2004] RTR 534; [2003] ECR I14447, ECJ. Against that background a technical argument that the juristic
structure of a claim in tort differed from that of a claim whose purpose was to
require the MIB to meet its contractual obligations (and that, on that account, the
principle of equivalence did not apply) was unlikely to prevail. It does not
necessarily follow that the comparison of the juristic structures of mooted
comparators in other, more appropriate, contexts will not be a relevant means of
assessing their claimed similarity.
36. In Revenue and Customs Comrs v Stringer & Ors the comparison was
between the statutory right to paid annual leave (based on the EC Working Time
Directive 93/104/EC) and a contractual right to holidays with pay. The House of
Lords concluded both that the two claims were sufficiently similar for equivalence
purposes, and that the different limitation periods applicable to each amounted to
less favourable treatment of the Community law right. The respondent in this
appeal argued that this betokened a broader approach than had hitherto been taken
to the question of similarity between rights for the purposes of equivalence. For
reasons that I will shortly state, I question that claim.
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37. The Working Time Directive has as its foundation concern for health and
welfare. The House of Lords did not consider that this feature made it dissimilar to
a contractual right to paid leave. After commenting in not unfavourable terms to
Lord Slynn’s admonition in Preston that one should be careful not to accept
superficial similarity as sufficient, Lord Walker of Gestingthorpe, who delivered
the principal speech said, at para 62:
“In these appeals, however, the parallel between the statutory right to
paid annual leave and a contractual right to holidays with pay is to
my mind much clearer and closer. It is not less close because of the
Working Time Directive’s emphasis on health and safety at work.
Similar thinking has for many years informed the approach of
responsible employers in framing contractual terms of employment.
Moreover in each case the remedy would be an order for payment of
the liquidated sum due.”
38. Lord Walker did not propound a different approach from that of the
majority in Preston. He merely commented that the two rights in the Stringer case
had a much more obvious connection than did the rights that were involved in the
earlier case. Indeed, his reference to health and safety considerations informing
contractual terms of employment illustrates Lord Walker’s acceptance that
something more than mere superficial similarity was required.
39. A similar stance can be detected from the opinion of Lord Neuberger of
Abbotsbury. At para 71 he said that the “purpose of a ‘holiday’ from work is, at
least in part, the psychological and social well being of the employee”. But of
perhaps greater consequence is the interesting and, in relation to the issues that
arise in this case, highly pertinent observation that Lord Neuberger made in para
88 to the effect that “the question of similarity, in the context of the principle of
equivalence, has to be considered by reference to the context in which the principle
is being invoked”.
40. Various formulae have been employed to describe the nature of the
similarity that is required. For instance, whether the purpose and essential
characteristics of the two measures are the same – Palmisani, paras 34 to 38. Or
whether the role played by the provision in the procedure as a whole, as well as the
operation and any special features of that procedure before different national
courts, sustain or detract from the claim to equivalence – Levez para 44. Another
criterion suggested is that the purpose and cause of action should be similar – para
41 of Levez. The latter part of this formulation prompted the statement by Buxton
LJ that the juristic structure of the two measures should be closely related.
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41. It is not clear, however, whether any or all of these criteria are
indispensable requirements. As Lord Clyde observed in Preston the requirement of
similarity or comparability is an inexact one (para 41). It is unlikely that juristic
structures of exactly similar type are required if by that term it is implied that the
means of securing the right should be the same or directly analogous. If the
essential characteristics of the rights claimed are identical or closely similar, it
would be a curious result that equivalence should be denied simply because the
legal means of obtaining vindication of the right asserted differed. On the other
hand, if the juristic structures are the same, this might well be a good indicator that
the principle of equivalence applies.
42. On the whole therefore there is much to be said for Lord Neuberger’s view
that the question of the required similarity and the criteria necessary to establish it
in an individual case will depend on the context in which the application of the
principle of equivalence is canvassed. It does not appear, however, that this issue
has been directly considered by the Court of Justice and on that account alone a
reference is required.
The source of procedural rights of the asylum applicant
43. At para 47 of the Court of Appeal’s judgment, Pill LJ stated that “the rights
of a refugee, as now provided in national law, and the rights of a person with
subsidiary protection status, as provided by the Directive are in many respects
similar”. The Secretary of State contends that this clearly implied that the court
had concluded that the source of FA’s rights in relation to his asylum application
was exclusively national law. It is submitted that such a conclusion was plainly
incorrect.
44. It is common case between the parties that by virtue of article 4 of the
Treaty on the Functioning of the European Union (TFEU) the area of freedom,
security and justice in Community law is one of shared competence between the
EU and member states. It is also agreed that EU’s competence in this area is
defined by article 78 of TFEU. And both parties have referred to the requirement
in article 2 (2) of TFEU that member states shall exercise their competence to the
extent that the EU has not exercised its competence or to the extent that the Union
has decided to cease exercising its competence.
45. Mr Eicke for the Secretary of State submits that the EU has exercised its
competence under article 78 to define, among other things, the requirements for
qualification as a refugee; the grant and content of refugee status; and the
procedures, including the appeals procedure in relation to the grant and withdrawal
of refugee status. The last of these found expression in domestic law through
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sections 82, 83 and 83A of the 2002 Act. In consequence, it is argued, the
purported comparators (sections 82-83A) are not domestic measures at all. Since,
it is said, they are not eligible for that role, the principle of equivalence cannot be
invoked. Indeed, the appellant argues, the substantive content of both rights (i.e.
the right to refugee status and the right to humanitarian protection) is derived from
the same EU law instrument and, in fact, the same chapter within that EU law
instrument: namely Chapter VII of the Qualification Directive. It is claimed,
therefore, that there can be no question of comparison with a domestic law right.
46. For the respondent Mr Husain emphasises that the United Kingdom is not
prevented by the Qualification Directive from adopting and maintaining purely
domestic legislation in the field of refugee law. He points out that the Qualification
Directive is a minimum standards instrument. In stark contrast to Art 1A of the
Refugee Convention, which applies the term refugee to any person who comes
within the definition set out in Art 1A(1) and 1A(2), the Qualification Directive
applies only to third country nationals. Moreover, domestic legislation – even
transposing instruments – has continued to define a claim to asylum by reference
to the Refugee Convention rather than the Qualification Directive.
47. While these arguments are indisputable at a theoretical level, it is
questionable that they have any relevance to the issues joined between the parties.
It is not a matter of dispute that the asylum claim is based on provisions that were
enacted on foot of the United Kingdom’s obligations under the Qualification
Directive. True it is that they mirror requirements set out in the Refugee
Convention and that this may have been the original source of many of the
provisions of the Qualification Directive. But this does not answer the essential
question of whether the claim to refugee status can qualify as a valid comparator
either because it can be described as having a “mixed” source i.e. it is based on
both EU and domestic law or because the Refugee Convention is the original
source of the relevant claim to refugee status and its provisions shaped those
contained in the Qualification Directive. Again, it does not appear that these
questions have been addressed directly in the case law of the Court of Justice and
for that reason also a reference is required.
Conclusions
48. For the reasons given in this judgment a number of issues have arisen on
this appeal which, in the opinion of this court, require a preliminary ruling by the
Court of Justice of the European Union under article 267 of the Treaty on the
Functioning of the European Union. The parties are therefore invited to make
submissions in writing within 28 days on the questions to be referred to the Court
of Justice.
