Ir (Morocco) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lady Justice Gloster,LORD JUSTICE ELIAS |
| Judgment Date | 21 May 2014 |
| Neutral Citation | [2014] EWCA Civ 966 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 May 2014 |
| Docket Number | C5/2013/2383 |
[2014] EWCA Civ 966
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Laws
Lord Justice Elias
Lady Justice Gloster
C5/2013/2383
Mr M Westgate, QC andMr P Draycott (instructed by Paragon Law) appeared on behalf of the Appellant
The Respondent did not appear and was not represented.
This is an appeal with permission granted by Kitchin LJ on 19 December 2013 against the determination of the Upper Tribunal, Upper Tribunal Judge Hanson, dated 20 May 2013 by which the Upper Tribunal dismissed the Appellant's appeal against the decision of the First Tier Tribunal ("FTT") (First Tier Tribunal Judge Ford) of 10 January 2012.
The FTT had to consider the Appellant's appeal against the decision of the Secretary of State of 20 October 2011 refusing the Appellant's application for further leave to remain in the United Kingdom based on claims of asylum and humanitarian protection. The Secretary of State had comprehensively rejected the Appellant's factual assertions. However, the FTT accepted his account in its essentials: see paragraph 78 to 82. Judge Ford allowed his appeal on humanitarian protection grounds and under Article 3 of the Human Rights Convention, but dismissed it in relation to the asylum claim because she was not satisfied to the requisite standard that he feared persecution by reason of his membership of a particular social group.
The Appellant appealed against this adverse finding to the Upper Tribunal, notwithstanding the fact that he was and indeed remains at no risk of removal from the United Kingdom because of the FTT's favourable conclusions on humanitarian protection and Article 3. The Upper Tribunal dismissed his appeal.
The Appellant is a national of Morocco born on 9 October 1993. He arrived in the United Kingdom on 25 February 2010. He claimed asylum. That was refused, but he was granted discretionary leave until 9 April 2011. His application for further leave was refused, as I have said, on 12 October 2011. His factual case is crisply described by the FTT as follows:
"The Appellant's mother died while he was still very young. His father remarried and had several more children. The Appellant was physically and emotionally ill-treated by his father and his step-mother. When he was about 7 years of age the Appellant's father threw him out of his home and from then onwards the Appellant lived on the streets. He did not attend school. The Appellant lived on the streets in Casablanca. He was physically and sexually abused by older beggars, many of whom were drug addicts.
From time to time the Appellant was picked up by the police and spent some time in police detention. The Appellant was without identification papers. He began to use drugs. When he was under the influence of drugs he set another street child alight and was put into detention. He was initially remanded in an adult prison where he was raped. He was sentenced to fifteen years' imprisonment and was then placed in juvenile detention. After several months in juvenile detention he managed to escape.
The Appellant had suffered from suicidal thoughts when he was detained. He made his way to France where he secured employment, although it was unpaid. He left this situation following a row with a work colleague.
Since coming to the United Kingdom the Appellant has been tested for and found to be clear of STDs. He has been diagnosed as suffering from an unspecified stress reaction. He does not fulfil the full criteria for PTSD or adjustment disorder. Although he has been prescribed anti-depressants (citalopram) by his GP, his psychiatrist does not feel that he gives symptoms of a depressive illness. The diagnosis is primarily based on his symptoms of flashbacks and nightmares and avoidance of reminders of his symptoms.
The Appellant has made considerable progress in learning the English language since his arrival in the United Kingdom and has also become involved in soccer and social activity. He fears a return to Morocco because he is without family support and given that unemployment rates are so high, he fears that he will end up on the streets again. He fears that he will again become suicidal or addicted to drugs or will become the victim once more of violence or sexual abuse."
There was much contention below as to whether it was shown on the evidence that the Appellant belonged to a particular social group for the purposes of the law of refugee status. However it was, in effect, assumed by Upper Tribunal Judge Hanson that he did. Upper Tribunal Judge Hanson said this at paragraph 21:
"I accept Mr Draycott's submission that risk which exists when a minor may not suddenly disappear just because a person attains the age of 18, especially as this issue needs to be viewed through the eyes of the persecutor. In this case, Judge Ford found as a fact that the Appellant is both an adult and will not be returning to the streets of Morocco as he will be returned to prison. She found he will, therefore, no longer be a street child and so not at risk in that capacity. He will remain an orphan and it is arguable he falls within the PSG identified by Mr Draycott as a former street child in Morocco. It is submitted street children form a distinct group in Moroccan society and being a former street child is an immutable characteristic."
Judge Hanson pointed towards what is the live issue in the case when he said at paragraph 23:
"Even if a person can be said to fall within a body which satisfies the definition of a PSG in law and suffers persecution, unless that persecution is as a result of his or her MPSG [I interpolate that is, of course, membership of a particular social group] that person is not entitled to refugee status."
Moreover, the Upper Tribunal held (paragraph 25) that Judge Ford in the FTT had been entitled to conclude that the Appellant had not proved that:
"Any ill treatment he will experience was because, in the mind of his persecutor, the reasons for such ill treatment was his MPSG."
The issue in the case is whether the Tribunals below misapprehended the nature of the causal link or nexus which an asylum seeker must show between the persecution he fears and the characteristic, here MPSG, mentioned in the United Nations Refugee Convention which applies to him.
I will come to Judge Ford's conclusion shortly. Let me first turn to the legal materials. As is well-known, a "refugee" is defined by Article 1A(2) the 1951 UN Convention relating to the status of refugees as any person who:
"Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
Council Directive 2004/83/EC , the Qualification Directive, incorporates the Convention meaning of "refugee" into EU law: see Article 2(c) which replicates the definition word for word. Mr Westgate QC for the Appellant, however, draws particular attention to Article 9(3) of the Directive which provides:
"In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1."
Article 10 is headed "Reasons for persecution" and includes a description of "particular social group". As I shall explain, Mr Westgate's focus is on the expression "connection between the reasons and the acts of persecution".
I should note that The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 implementing the Directive in UK law has this at paragraph 5(3):
"An act of persecution must be committed for at least one of the reasons in Article 1(A) of the Geneva Convention."
There is a good deal of learning, judicial and academic, upon the question what is the nature of the link that must be shown between the feared persecution and the Convention characteristic which the asylum claimant possesses? Thus I should notice Lord Bingham's observation in Fornah [2007] 1 AC 412 at paragraph 17:
"The ground on which the claimant relies need not be the only or even the primary reason for the apprehended persecution. It is enough that the ground relied on is an effective reason."
Mr Westgate is at pains to emphasise that the ascertainment of the necessary link between persecution and Convention characteristic is an objective exercise to which the alleged persecutor's motives bear no relation. He cites, for example, the Michigan...
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