Secretary of State for the Home Department v MSM (Somalia) United Nations High Commissioner for Refugees (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Tomlinson,Lord Justice Moore-Bick |
| Judgment Date | 12 July 2016 |
| Neutral Citation | [2016] EWCA Civ 715 |
| Docket Number | Case No: C5/2015/3380 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 2016 |
and
[2016] EWCA Civ 715
Lord Justice Moore-Bick, VICE PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION
Lord Justice Tomlinson
and
Lord Justice Beatson
Case No: C5/2015/3380
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
Deok Joo Rhee (instructed by Government Legal Department) for the Appellant
Christopher Jacobs and Guy Goodwin-Gill (instructed by Duncan Lewis Solicitors) for the Respondent
Marie Demetriou QC and Tom Pascoe (instructed by Baker and McKenzie LLP) for the Intervener
Hearing date: 15 June 2016
Approved Judgment
I. Introduction
This is an appeal by the Secretary of State for the Home Department against the decision of the Upper Tribunal (McCloskey J and UTJ Dawson) reported as MSM (Journalists; Political Opinion; Risk) (Somalia) [2015] UKUT 00413 (IAC). For the purposes of these proceedings the respondent is to be known as MSM. He had worked as a journalist for a radio station in Somalia between May 2011 and September 2013. On his arrival in this country in October 2013, he unsuccessfully applied for refugee status on the ground that, given prevailing conditions in Somalia, as a journalist, he is at risk of persecution if returned. The Upper Tribunal's decision allowing his appeal was promulgated on 3 July 2015.
The Secretary of State submits that the Upper Tribunal erred in law in concluding that the respondent has a well-founded fear of persecution in Somalia and is not to be denied refugee status on the ground that it would be open to him to seek to engage in employment other than in the journalistic or media sector in which he had worked before leaving Somalia. Two issues arise. The first is whether the tribunal found that the underlying ground of persecution is actual political opinion and, if so, whether that decision is sustainable. It is submitted on behalf of the Secretary of State that it is not.
The second issue is whether the Upper Tribunal erred in failing properly to distinguish between actual and imputed political opinion. Ms Deok Joo Rhee, on behalf of the Secretary of State, maintained that this is the central issue in this appeal. She described it as relating to the proper approach to the determination of refugee status where the underlying ground of persecution is imputed as opposed to actual political opinion, and where it is open to an applicant to take avoiding action, in the present case to change his profession, so as to avoid the imputation to him of the political opinion which gives rise to the identified risk of persecution. She accepted that, in cases of actual political opinion, applicants for asylum cannot be denied refugee status on the ground that it would open to them to modify their behaviour so as effectively to hide that political opinion because such an approach would be tantamount to denying the protection which the Refugee Convention affords: see the decisions of the Supreme Court in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, [2011] 1 AC 596 and RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38, [2013] 1 AC 152. But she submitted that the same does not follow in the case of an imputed political opinion.
The Secretary of State's case is that in some cases of imputed political opinion an applicant can be expected to modify his or her behaviour so as to avoid the imputation to him or her of the political opinion which gives rise to the identified risk of persecution. Ms Rhee submitted that whether this is so turns on whether the modification of behaviour would involve the denial of a fundamental right. It is, however, clear that her submission is in fact narrower. In particular, the Secretary of State's case is that only what were described as "core" and "non-derogable" fundamental rights, those in Articles 9(2) and 10 of Directive 2004/83/EC of 29 April 2004, the "Qualification Directive", qualify.
I am grateful for the submissions of Ms Rhee, and for those of Mr Christopher Jacobs and Mr Guy Goodwin-Gill, on behalf of MSM. I am particularly grateful for the written and oral submissions of Ms Marie Demetriou QC and Mr Tom Pascoe on behalf of the intervener, the United Nations High Commissioner for Refugees ("UNHCR"). I should add that this case originally came before the court on 3 February 2016, but was adjourned owing to the indisposition of counsel. The case was relisted for hearing on 15 June but, although two of the three members of the February constitution were sitting, the third member of that constitution was not. Accordingly, the hearing in June was an entirely new hearing rather than a continuation of the earlier hearing.
For the reasons I give at [32] – [34] below, I have concluded that the Secretary of State's appeal should be dismissed because the tribunal in fact made a finding that MSM's pursuit of a career in journalism involving the expression of political opinion is "at least partially driven by political conviction relating to conditions prevailing in Somalia". In short, this is not a case of imputed political opinion. It is therefore not necessary to reach a decision as to whether the tribunal erred in its approach to the determination of refugee status where the underlying ground of persecution is imputed, as opposed to actual, political opinion and it is open to the applicant to take avoiding action. In my judgment, since it is not necessary to deal with this issue to dispose of this appeal, the court should tread warily before making statements that will not be binding and which may not be of assistance when the broader question falls for decision in a concrete factual context. Nevertheless, given the extent of the arguments on this point and the request by all counsel before the court that we deal with it, in the Secretary of State's case because of what was said to be the precedential force of the Upper Tribunal's decision, at [36] – [47] below, I explain why I consider that the arguments submitted on behalf of the respondent and the UNHCR are powerful and why, had it been necessary to decide this question, I would have been inclined to accept the submissions of Mr Jacobs and Ms Demetriou.
II. The legal framework
The legislative framework is to be found in Directive 2004/83/EC, Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection, commonly referred to as the "Qualification Directive". The Directive is based on the 1951 United Nations Convention Relating to the Status of Refugees ("the Geneva Convention"), as supplemented by the 1967 New York Protocol.
The definition of "refugee" in Article 2(c) of the Qualification Directive is in substance the same as the definition in the first paragraph of Article 1(A)(2) of the Geneva Convention. By Article 2(c), "a 'refugee' means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country … or, owing to such fear, unwilling to return to it" and is not excluded from being a refugee by Article 12.
The key provisions of the Directive for this appeal are Articles 9 and 10. Article 9 deals with acts of persecution. It provides:
"1. In order to be regarded as an act of persecution within the meaning of Article 1(A) of the Geneva Convention, an act must:
(a) be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) be an accumulation of various measures, including violation of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a).
2. Acts of persecution as qualified in paragraph 1 can, inter alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual violence;
(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
(c) prosecution or punishment which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in Article 12(2);
(f) acts of gender-specific or child-specific nature.
3. In accordance with point (d) of Article 2, there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1 of this Article or the absence of protection against such acts."
Article 10 deals with the grounds or reasons for persecution. So far as material for present purposes, it provides:
"1. Member States shall take the following elements into account when assessing the reasons for persecution:
…
(b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention, or abstention from, formal worship in private or public, either alone or in community with others, other religious acts or expressions of view, or...
To continue reading
Request your trial
-
SR (Sri Lanka) v Secretary of State for the Home Department
...is whether A would face a serious risk of persecution on return. A cited Secretary of State for the Home Department v MSM (Somalia) [2016] EWCA Civ 715. It did not matter if he would face that risk because of his own conduct or sur place activities, however cynical or unreasonable those mi......
-
LC (Albania) v The Secretary of State for the Home Department The United Nations and Another (Intervener)
...involve the expression of political opinion that would then give rise to a well-founded fear of persecution. The Court of Appeal ( [2016] EWCA Civ 715 (" MSM (CA)") considered those findings were determinative of the appeal. 37 Before us, Mr Chelvan, rightly, did not focus upon anything in......
-
Upper Tribunal (Immigration and asylum chamber), 2022-04-19, PA/13943/2018
...“ought to do,” in cases of imputed political opinion. That was counselled against by Beatson LJ in SSHD v MSM (Somalia) and UNHCR [2016] EWCA Civ 715. 100. Instead, in deciding the issue of risk on return involving a Facebook account, a decision maker may legitimately consider whether a per......
-
Upper Tribunal (Immigration and asylum chamber), 2021-03-18, PA/11318/2019
...group”. That submission relies on the Court of Appeal’s judgment in Secretary of State for the Home Department v MSM (Somalia) & Anor [2016] EWCA Civ 715 and what is said at [52] of that judgment. I observe that the extract cited in the grounds is taken from the brief observations of Lord J......