Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807

Syrian national appealed refusal of asylum, claiming risk of ill-treatment as a draft evader if returned. The Court of Appeal upheld the Immigration Appeal Tribunal's decision, finding that where no personal risk factors exist, establishing 'real risk' requires evidence of a consistent pattern of gross and systematic human rights violations affecting the relevant class.

Facts

The appellant, Abdurahman Hariri, was a Syrian national who claimed asylum in the United Kingdom in November 2000. He had served in the Syrian army twice previously and objected to a third call-up, which he claimed led to a dispute with a military officer during which he insulted the officer, the government and the country. He fled Syria fearing imprisonment and torture. The Secretary of State refused him leave to enter as a refugee and rejected his claim under Article 3 of the European Convention on Human Rights.

Earlier Proceedings

The Adjudicator accepted the appellant’s evidence about the requirement for further military service and his dispute with an army officer, but rejected claims that he had fallen foul of the Ba’ath Party or would be viewed as disloyal. The Immigration Appeal Tribunal (IAT) upheld the Adjudicator’s findings.

Issues

The key issue before the Court of Appeal was whether the IAT applied an incorrect standard of proof by requiring evidence of a ‘consistent pattern of gross and systematic violation of fundamental human rights’ to establish risk of persecution or Article 3 ill-treatment for draft evaders and those who left Syria without authorisation. The appellant argued this was inconsistent with the ‘reasonable degree of likelihood’ standard established in Sivakumaran.

Judgment

Lord Justice Laws delivered the leading judgment, dismissing the appeal. He held that once the appellant’s individual circumstances had fallen away as grounds for risk, his case depended entirely on establishing real risk as a member of a class (draft evaders or unauthorised departees).

“Absent evidence to show that the appellant was at risk because of his specific circumstances, there could be no real risk of relevant ill-treatment unless the situation to which the appellant would be returning was one in which such violence was generally or consistently happening.”

Laws LJ concluded that the ‘consistent pattern of gross and systematic violation’ test was not at variance with the Sivakumaran standard but rather:

“a ‘consistent pattern of gross and systematic violation of fundamental human rights’, far from being at variance with the real risk test is, in my judgment, a function or application of it.”

Application of the Test

The Court approved the IAT’s approach in Muzafar Iqbal, which stated:

“In cases which rest not on a personal risk of harm… but on a risk of serious harm said to face people generally… it cannot be said that they would face a real risk of serious harm unless in that country there is a consistent pattern of gross and systematic violations of their human rights whilst in detention.”

Implications

This decision clarifies the approach to asylum and Article 3 claims where an applicant cannot establish personal risk factors. In such cases, to demonstrate ‘real risk’ under the Sivakumaran standard, evidence must show that ill-treatment is not merely routine or frequent but reflects a consistent pattern of gross and systematic violations affecting the relevant class of persons. The judgment confirms that the historical origins of this test in the UN Convention Against Torture do not preclude its application as an appropriate method of establishing real risk under the Refugee Convention and ECHR.

Verdict: Appeal dismissed. Leave to appeal to the House of Lords refused.

Source: Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807