HA (Article 24 QD)

(i) Article 24 of the Qualification Directive does not confer a substantive right of residence in the Member State concerned. Rather, its function is to determine the modalities whereby a right of residence otherwise existing is to be documented.

(ii) The Procedures Directive is a truly adjectival instrument of EU legislation. It does not create any substantive rights in the realm of asylum or subsidiary protection.

The origins of this appeal lie in a decision made on behalf of the Secretary of State for the Home Department (the � Secretary of State �) dated 14 January 2014, whereby it was determined that the further representations made on behalf of the Appellant, who is aged 30 years and originates from the so-called Palestinian National Authority (�PNA�) � viz the territory (or territories) of Palestine - did not constitute a fresh claim under paragraph 353 of the Immigration Rules. The First-tier Tribunal (the � FtT �) dismissed the Appellant�s ensuing appeal.

Permission to appeal to this Tribunal was refused initially. This was challenged by an application for judicial review which was the subject of formal consensual resolution documented by a joint minute, duly endorsed by the Lord Ordinary on 14 August 2014, agreeing that the application for permission to appeal gives rise to the following important point of principle:

Where an asylum seeker was last habitually resident in country A, can he establish an entitlement to a residence permit in the United Kingdom solely by reason of the risk of harm he would face if returned to country A, notwithstanding that the Secretary of State intends not to remove him to country A but to country B instead?