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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> ST (Minor, Age dispute) Afghanistan [2005] UKIAT 00048 (27 January 2005) URL: http://www.bailii.org/uk/cases/UKIAT/2005/00048.html Cite as: [2005] UKIAT 48, [2005] UKAIT 00048, [2005] UKIAT 00048 |
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ST (Minor – Age dispute) Afghanistan
[2005] UKIAT 00048
Date of hearing: 25 November 2004
Date Determination notified: 27 January 2005
ST | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
"62…The judgment in [Saad, Diriye and Osorio [2001] EWCA Civ 2008 [2002] INLR 34] clearly holds that the existing appeal structure governing appeals against refusal of asylum entitles Appellants to a decision in relation to refugee status. In each case the decision facing the appellate authority is the hypothetical one of whether removal would be contrary to the Convention at the time of the hearing – i.e. on the basis of the refugee status of the Appellant at that time. Accordingly, even if there are practical obstacles in the form of a refusal by the authorities of the receiving state to re-admit an Appellant, the appeal on asylum grounds nevertheless requires substantive consideration on the hypothetical basis of whether – if returned – an Appellant would face a real risk of persecution.
63. However, we cannot see that the same principle applies in respect of human rights grounds of appeal. The decision appealed against is one and the same but, in contrast the position under the Refugee Convention, success in a human rights appeal does not in itself result in any status at international law, nor indeed in domestic law. Furthermore Strasbourg jurisprudence considers that practicalities in relation to return are of central importance. If the threat of removal is not imminent then there can be no violation of the Convention: see Vijayanathan and Pushparajah v France (1993) 15 EHRR 62."
Where, however, the leave already granted has expired, or is about to expire, the Adjudicator will have to consider the effect of an imminent return upon the appellant.
ANDREW JORDAN
VICE PRESIDENT
Approved for electronic distribution