Authors:Katie Nelson and Franck Magennis
Created:2024-08-28
Last updated:2024-09-02
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Katie Nelson and Franck Magennis look at the case of an asylum-seeking Palestinian citizen of Israel who was granted refugee status after the Home Office conceded his appeal.
According to Home Office data, no main applicants from Israel were granted refugee status at the initial stage in the past 20 years (
Immigration system statistics year ending March 2023: asylum and resettlement – applications, initial decisions, and resettlement, Home Office, 25 May 2023, table Data – Asy_D02). However, in March 2024, the Home Office conceded a Palestinian Citizen of Israel’s asylum and human rights appeal less than 24 hours before the scheduled hearing at the First-tier Tribunal (Dan Sabbagh, ‘
Palestinian citizen of Israel granted UK asylum in case said to be unprecedented’,
Guardian, 12 March 2024). ‘Hasan’ asserted that he was at real risk of persecution should he be removed to Israel.
Hasan’s case
Sometimes referred to as ‘Arab Israelis’, ‘Palestinian citizens of Israel’ largely refers to those Palestinians who remained in the territory, though often internally displaced, in 1948 when over 750,000 were forced to flee the historic territory against the backdrop of village depopulations and massacres during the formation of the state of Israel, referred to as the ‘Nakba’ (‘catastrophe’).
While there are several Upper Tribunal country guidance determinations (albeit most are extremely dated) and Home Office country policy and information notes (CPINs) concerning Palestinians in the Occupied Palestinian Territories (OPT) of Gaza and the West Bank, as well as Palestinian refugees in Lebanon, Syria and Jordan, there are currently neither determinations nor CPINs that address the position of Palestinians living in Israel.
Hasan claimed that he would be subject to discrimination as a Palestinian citizen of Israel in light of the state’s laws, policies and practices that several NGOs (see below) have concluded meet the elements of the crime of apartheid. In addition, Hasan also claimed that he would be persecuted because of his sur place political activities based on his Palestinian solidarity activism in the UK and his anti-Zionist political opinions.
The 1976 Apartheid Convention
Article II of the
1976 International Convention on the Suppression and Punishment of the Crime of Apartheid applies the term ‘the crime of apartheid’ to ‘inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them’, with a similar definition being provided in the
Rome Statute of the International Criminal Court, which comprises three primary elements: (1) an intention to maintain a system of domination by one racial group over another; (2) systematic oppression by one racial group over another; and (3) one or more inhumane acts (see article 7(1)(j) and (2)(h)).
Hasan filed evidence with the Home Office relying on reports from NGOs such as Human Rights Watch (
A threshold crossed: Israeli authorities and the crimes of apartheid and persecution, 27 April 2021), Amnesty International (
Israel’s apartheid against Palestinians: cruel system of domination and crime against humanity, Index No 15/5141/2022, 1 February 2022), Al-Haq (
Israeli apartheid: tool of Zionist settler colonialism, 29 November 2022), and the UN Economic and Social Commission for Western Asia (
Israeli practices towards the Palestinian people and the question of apartheid,
Palestine and the Israeli Occupation Issue No 1, E/ESCWA/ECRI/2017/1, 15 March 2017), which provide a detailed legal and factual analysis of the laws, policies and practices of Israel in the OPT and within Israel, through which, according to Human Rights Watch, it ‘methodically privilege[s] Jewish Israelis and discriminate[s] against Palestinians’.
The 1951 Refugee Convention
In terms of the
1951 Refugee Convention, systematic racial oppression through inhumane acts, with an intention to maintain a system of domination, is clearly capable of amounting to persecution. The concept of discrimination is integral to the meaning of persecution. Lord Hoffmann in
Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal and another ex p Shah [1999] 2 AC 629 (HL) commented that being discriminated against is ‘central to an understanding of the convention’. The EU Qualification Directive (
Directive 2011/95/EU) working definition of persecution (article 9, now replicated in Nationality and Borders Act 2022 s31) has at its core discriminatory measures, in addition to violations of basic human rights.
The European Convention on Human Rights
Practitioners may also wish to consider arguments under articles 3 and 8 of the
European Convention on Human Rights (ECHR) in this context. In
East African Asians v UK App Nos 4403/70-4419/70 and others, 14 December 1973; [1981] 3 EHRR 76, the European Commission of Human Rights considered that discrimination based on race could itself amount to ‘degrading treatment’, taking into account the ‘special form of affront to human dignity’ that racial discrimination entails (para 207). In the Country Guidance case on Croatia,
S and K (Return – Ethnic Serb) Croatia CG [2002] UKIAT 5613, the Upper Tribunal (UT) set out that there is no doubt that discrimination on the grounds of race is a factor to take into account when deciding whether a breach of article 3 has occurred, and in some circumstances it may ‘tip the balance’ (para 17).
While the intention to degrade is not necessary to establish a breach, as per
D v UK App No 30240/96, 2 May 1997, the UT in
S and K nevertheless commented that the intention will be relevant in forming an overall view as to a breach of article 3, providing an example of ethnic cleansing being government policy.
Hasan’s basis for claiming that he faced a real risk of a flagrant breach of his ECHR rights included the contention that the cumulative effects of breaches across such a broad spectrum bears on the ‘flagrant breach or violation’ analysis, as well as the issue of demonstrating that the article 3 threshold has been crossed on grounds of the severity of racial discrimination alone.
Risk if returned: political expression
It important to explore whether Palestinians, as well as Jewish Israelis who hold anti-Zionist political opinions, might be at risk if returned. As is well known, in
HJ (Iran) v Secretary of State for the Home Department and one other action; HT (Cameroon) v Secretary of State for the Home Department and one other action [2010] UKSC 31; [2011] 1 AC 596; April 2011
Legal Action 34, Lord Hope outlined the test for cases that raise the issue of whether ‘discreet’ behaviour is an answer to an asylum-seeker’s fear of persecution (para 65).
1See further RT (Zimbabwe) and others v Secretary of State for the Home Department; KM (Zimbabwe) (FC) v Secretary of State for the Home Department [2012] UKSC 38 at para 26.Conclusion
Issues on which it may be particularly important to take instructions from relevant clients include:
•differential treatment by the state and non-state actors;
•suppression of political opinion, including very low-level anti-Zionist political activity; and
•restrictions on freedom of movement, including being able to visit or live with relatives from the OPT.
The Home Office appears to have archived the current CPIN and fact-finding missions on the Occupied Palestinian Territories. It would be useful for any future versions to include the treatment of Palestinians within Israel. In the absence of this, there remains a wealth of detailed, good-quality resources by various NGOs, such as the reports mentioned above. We would also refer practitioners to reports from
Adalah, the Legal Centre for Arab Minority Rights in Israel, which has vast resources documenting the position of Palestinians within Israel. In addition, practitioners may find publications by
BADIL, the Resource Centre for Palestinian Residency & Refugee Rights, useful in all Palestinian asylum claims, in particular
Closing protection gaps: on protection of Palestinian refugees in states signatories to the 1951 Refugee Convention (2nd edn, February 2015).
Hasan was represented by Taher Gulamhussein and Fahad Ansari of Riverway Law, instructing Franck Magennis of Garden Court Chambers as counsel.