Refugee protection appeal allowed outright by the Court of Appeal

Wednesday 1 March 2023

The Appellant, MAH was represented by David Jones and David Sellwood of Garden Court Chambers.

Counsel instructed by Olivia Cavanagh and Kate Jessop of Brighton Housing Trust.

View full judgment here: MAH v SSHD [2023] EWCA Civ 216

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In a highly unusual move, the Court of Appeal has set aside a decision from the Upper Tribunal dismissing a refugee protection appeal, and re-made the decision for itself, allowing the appeal outright and recognising the appellant as a refugee.

The case concerns an Egyptian national, MAH, whose father was arrested and imprisoned because of an association (real or perceived) with the Muslim Brotherhood. He subsequently died during his imprisonment. Two other relatives of MAH were also detained for the same reason. MAH applied for asylum in the UK on the basis that he, too, would be at risk in Egypt as a result. He was a minor when he first claimed asylum, but his appeal went back and forth between the First-tier and Upper Tribunals, culminating in the Upper Tribunal’s latest decision being promulgated after MAH reached adulthood.

The Upper Tribunal accepted that MAH’s father had indeed been arrested and imprisoned. It also accepted he had died in a prison notorious for housing political prisoners. It did not, however, accept that those events arose as a result of an actual or perceived association with the Muslim Brotherhood. The Court of Appeal disagreed. It concluded that the Upper Tribunal had imposed the wrong standard of proof, requiring something more exacting than what was in fact required in refugee protection claims, i.e. a ‘reasonable degree of likelihood’; and that in substance it had required corroborative evidence when there is no such requirement in law. Ultimately, the Court found there was only one conclusion reasonably open to it: that MAH was a refugee.

The Court’s judgment helpfully sets out the key principles relevant to refugee status determination, including the correct standard of proof; credibility; and the role of appellate courts in such cases. Importantly, it also identifies the correct approach to the Immigration Rules that are concerned with giving applicants ‘the benefit of the doubt’ in refugee protection claims.

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