Secretary of State for the Home Department v JS (Uganda)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Haddon-Cave,Lord Justice Newey,Lord Justice Underhill |
| Judgment Date | 10 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1670 |
| Date | 10 October 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2018/2614 and C2/2019/1244 |
[2019] EWCA Civ 1670
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Coker / Upper Tribunal Judge Rimington
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal, Civil Division)
Lord Justice Newey
and
Lord Justice Haddon-Cave
Case No: C5/2018/2614 and C2/2019/1244
Nicholas Chapman (instructed by the Treasury Solicitor) for the Appellant
Raza Husain QC, Benjamin Bundock, and Eleanor Mitchell (instructed by Duncan Lewis) for the Respondent
Hearing dates: 2–3 July 2019
Approved Judgment
INTRODUCTION
This case concerns the 1951 Geneva Convention on Refugees (“the Refugee Convention”) and the protection against refoulement afforded to foreign criminals subject to deportation orders, who have previously been granted refugee status linked to the refugee status of a family member. The case raises issues of construction as to the definition of “refugee” under Article 1A(2) and the true construction of the “cessation” provision under Article 1C(5) of the Refugee Convention.
There are three appeals:
(A) The Main Appeal: in the Main Appeal (C5/2018/2614), the Secretary of State for the Home Department (“SSHD”) appeals against the decision by Upper Tribunal (Immigration and Asylum) Judge (“UTJ”) Coker on 5 th July 2018 to set aside the decision by First-Tier Tribunal (Immigration and Asylum) Judge (“FtTJ”) Sullivan on 22 nd May 2017 to dismiss the appeal by JS against his deportation order dated 5 th February 2016.
(B) The Cross-Appeal: in the Cross-Appeal, JS challenges the said decision of UTJ Coker on 5 th July 2018 as regards her finding that FtTJ Sullivan did not materially err in refusing the SSHD's appeal on Article 3 grounds.
(C) The Linked Appeal: In a Linked Appeal arising out of the same facts and involving the same parties (C2/2019/1244), JS appeals against the decision of UTJ Rimington dated 7 th May 2019 whereby she refused JS's application for permission to apply for judicial review against what JS contended was the SSHD's change of position in the context of the main appeal (C5/2018/2614) as to whether JS was entitled to the protection of the Refugee Convention and certified the claim as totally without merit.
On 28 th January 2019, Irwin LJ granted the SSHD permission to appeal (A). On 20 th May 2019, Hickinbottom LJ granted JS permission to cross-appeal (B). On 4 th June 2019, Hickinbottom LJ ordered JS's separate appeal (C) to be heard on a rolled-up basis with (1) and (2).
The Court is grateful for the helpful research and written and oral submissions of counsel on both sides, Nicholas Chapman on behalf of the SSHD and Raza Husain QC, Benjamin Bundock and Eleanor Mitchell on behalf of JS.
Factual Background
JS was born on 1 st May 1989 and is a Ugandan citizen. He is now aged 30.
JS's mother granted asylum – 2005
On 11 th April 2005, JS's mother was granted asylum and Indefinite Leave to Remain (“ILR”) in the UK. She claimed a well-founded fear of persecution in Uganda by reason of her imputed political opinions. By letter dated 11 th April 2005, the Home Office stated that she had been recognised as a “refugee” as defined in the Refugee Convention and had been granted asylum in accordance with the Immigration Rules.
JS granted entry clearance – 2006
On 19 th December 2005, JS applied for entry clearance as the dependant of a recognised refugee, namely his mother. On 10 th May 2006, JS was granted Leave to Enter (“LTE”) the UK for family reunion.
On 26 th May 2006, JS arrived in the UK, aged 17, and was granted entry clearance.
JS's criminal conviction – 2013
In November 2013, JS was convicted of attempted rape of a vulnerable woman. He was sentenced to 5 years' imprisonment and required to sign the sex offenders' register for life. On 27 th November 2013, the SSHD notified JS that his deportation from the UK was to be considered.
On 9 th April 2015, the SSHD notified JS of an intention to deport him from the UK and invited representations.
On 17 th April 2015, the SSHD wrote to JS notifying him that his refugee status would be reviewed in the light of his conviction. The letter commenced with the words “You have been granted refugee status” and went on to state inter alia that: (i) Article 33 of the Refugee Convention prohibits the refoulement of a refugee, but not where they have committed a particularly serious crime and constitutes a danger to the community; (ii) s.72 of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”) applied “for the purpose of the construction and application of Article 33(2) of the Refugee Convention”; and (iii) since JS had committed a particularly serious crime and represented a danger to the community, his refugee status would be reviewed accordingly. JS was given the opportunity to rebut the presumptions under s.72 of the NIAA 2002.
On 1 st and 13 th May 2015 and 17 th September 2015, JS made representations as to why he should not be deported. JS asserted that he was a refugee, had been ill-treated in Uganda, and had claims under Articles 3 and 8 of the European Convention on Human Rights (“ECHR”).
On 4 th September 2015, the SSHD wrote to JS notifying him of the intention “to cease his [JS's] refugee status”. The SSHD's letter (i) noted that Article 1C of the Refugee Convention “sets out the conditions under which a refugee ceases to be a refugee”, and set out the corresponding provisions in paragraph 339A of the Immigration Rules; (ii) stated, “you were granted refugee status and leave in line with your mother […] not in your own right”; and (iii) concluded that “the Secretary of State is proposing to cease your refugee status because she is satisfied that Article 1C(5) and, therefore, paragraph 339A(v) […] apply”.
On 2 nd October 2015, the SSHD wrote to the Office of the United Nations High Commissioner for Refugees (“the UNHCR”), informing them of her intention to cease JS's refugee status, and enclosing the letter of 4 th September 2015 and JS's letter in response.
On 23 rd October 2015, the UNHCR replied, noting their understanding that the SSHD “proposes to cease [JS's] refugee status by the application of Article 1C(5) of the 1951 Convention”. The UNHCR highlighted relevant considerations and evidence and expressed concern that it did not appear that JS had ever been interviewed about his mistreatment by the Ugandan authorities.
On 7 th December 2015, the SSHD wrote again to JS repeating that JS had been granted refugee status “in line” with his mother and asserting that “it is not accepted that you were granted refugee status other than as a dependant of your mother”. The SSHD further stated that (i) JS was “no longer in need of international protection under the terms of the [Refugee Convention] as there has been a significant and enduring change in Uganda”, and (ii) since the circumstances in connection with which he had been recognised as a refugee had ceased to exist, he continued to refuse to avail himself of the protection of the country of his nationality pursuant to Article 1C(5) of the Refugee Convention and paragraph 339A(v) of the Immigration Rules. JS did not appeal against that decision.
On 5 th February 2016, the SSHD refused JS's protection and human rights claims, certified JS's case under s.72 of the NIAA 2002, incorporated and adopted the decision to cease JS's refugee status and decided to deport JS. Subsequently, JS appealed these decisions to the FtT.
On 2 nd June 2016, JS made further protection and human rights claims, based on a claim to be bisexual. On 5 th June, 13 th July and 9 th August 2016, the SSHD conducted interviews with JS in detention in relation to his individual asylum claim. JS also raised fears based on his past mistreatment in Uganda and his bisexuality.
On 12 th September 2016, the SSHD took a further decision to refuse JS's protection and human rights claims and disputed both JS's account of his mistreatment in Uganda and his bisexuality.
JS appealed that further decision to the FtT. In due course the two appeals, against the SSHD's decisions of 5 th February 2016 and 12 th September 2016, were joined.
Procedural Background
FtTJ Sullivan's determination – 22 nd May 2017
JS appealed the SSHD's decisions of 5 th February 2016 and 12 th September 2016 to the FtT. Both appeals were heard together by FtTJ Sullivan who, by a determination promulgated on 22 nd May 2017, dismissed both appeals on all grounds.
FtTJ Sullivan held that JS was recognised as a refugee on entry to the UK on 26 th May 2006 on the basis of the Family Reunion policy because of his mother's status. JS's mother had been granted refugee status because she was suspected of belonging to an unnamed rebel group. JS was not recognised as a refugee on the basis of his own activity or profile, i.e. in his own right. The attitude to former rebels had, however, softened in Uganda since his mother was granted asylum and the conditions for cessation under paragraph 339A(v) of the Immigration Rules were established (see further below).
In the course of his detailed judgment, FtTJ Sullivan referred to JS's assertion that his mother had been politically affiliated in Uganda and that “as a consequence he had been tortured by the current Ugandan government; his home in Uganda had been raided and he had scars on his body from physical attacks leading to him being granted asylum” (see [6] of his judgment).
FtTJ Sullivan's findings as to the basis of JS's entry to the UK are set out at [29]–[31] of his judgment:
“ Basis of Appellant's entry to the United Kingdom May 2006
29. The Appellant came to the...
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