Secretary of State for the Home Department v KN (DRC)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Leggatt,Lord Justice McCombe |
| Judgment Date | 09 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1665 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2018/0321 |
| Date | 09 October 2019 |
[2019] EWCA Civ 1665
Lord Justice McCombe
Lord Justice Leggatt
and
Lord Justice Baker
Case No: C5/2018/0321
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(Upper Tribunal Judge Blum)
RP/00077/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik (instructed by the Treasury Solicitor) for the Appellant
Shivani Jegarajah (instructed by Arona St James) for the Respondent
Hearing date: 20 June 2019
Approved Judgment
This is an appeal by the Secretary of State against the finding of the Upper Tribunal that his decision to revoke the respondent's refugee status breached the United Kingdom's obligations under the 1951 Refugee Convention.
Background
The respondent, who was born on 18 May 1981, is a national of the Democratic Republic of Congo (“DRC”). In 1989, his father left that country and came to the UK where he claimed asylum as a refugee. In his claim, the father stated that he had actively supported the fight for democracy in the DRC in opposition to the regime of President Mobutu and, as a result, had been arrested and tortured, before escaping and fleeing the country. On 6 July 1989, the respondent's father was granted the status of refugee. The respondent, then aged nine, came to this country with his mother and siblings in early 1991 to join his father. On 29 November 1994, the father, mother and their children, including the respondent, were granted indefinite leave to remain in this country. On the same day, the respondent, his mother and siblings were recognised as refugees.
Since 2000, the respondent has been in a relationship with a British woman, and together they have two children, aged 16 and 7.
Between 2001 to 2012, the respondent was convicted on seven occasions of a variety of criminal offences and received a number of custodial sentences, culminating on 8 June 2012 with a conviction at the Central Criminal Court of an offence of conspiracy to rob, for which he was sentenced to 4 years and six months imprisonment. As a result, he became liable to the automatic deportation provisions of s.32 of the UK Borders Act 2017.
On 23 April 2013, the respondent was served with a notice under s.72 of the Nationality, Immigration and Asylum Act 2002. On 23 December 2013, the respondent submitted representations setting out reasons why he should not be deported. Further representations were made on his behalf in a series of letters from his solicitors over the next three years. On 1 August 2014, the appellant served notice of intention to “cease” (i.e. revoke) the respondent's refugee status under Article 1C(5) of the Geneva Convention relating to the Status of Refugees 1951 (“the Convention”). In accordance with policy, on 21 January 2015, the appellant wrote to the UNHCR representative in London informing him of the decision to cease the respondent's refugee status and inviting comments about the decision. On 9 May 2016, the appellant sent a letter to the respondent headed “Cessation of Refugee Status”, revoking the respondent's status under Article 1C(5) of the Convention and paragraph 339(v) of the Immigration Rules, and asserting that the circumstances surrounding his initial claim for asylum no longer existed as there had been “a fundamental and durable change” in the situation in the DRC since it was granted. On 31 May 2016, the appellant made a deportation order in respect of the respondent and on 7 June 2016 served notice of a “decision to deport and to refuse a human rights claim”, setting out the reasons for the decision to deport him and concluding that the deportation would not breach the UK's obligations under Article 8 of ECHR.
On 20 June 2016, the respondent filed a notice of appeal against both decisions. The hearing of his appeal took place before the First-Tier Tribunal (FTT) on 7 July 2017. The issues on the appeal, as agreed between the parties and the tribunal, were:
(1) whether the respondent could rebut the statutory presumption under s.72 of the 2002 Act that, by reason of his sentence to imprisonment for at least two years, he was presumed to have committed a particularly serious crime and was a danger to the community;
(2) if he succeeded in rebutting the presumption, whether the respondent was no longer entitled to refugee status by virtue of a change in circumstances;
(3) whether deporting the respondent was an unlawful infringement of his rights under Article 8.
The FTT's decision was handed down on 28 July 2017. On the first issue, the tribunal concluded that the respondent had rebutted the statutory presumption. The judge accepted the evidence given by the respondent and other witnesses that he had recognised his wrongdoing and was unlikely to revert to criminal behaviour. On the second issue, the tribunal found that the Secretary of State had “not discharged the burden of proof to support the cessation of the [respondent's] refugee status”. The judge noted that there was no evidence that, when making the decision, the Secretary of State had taken into account the comments made by UNHCR, or assessed the situation of this particular respondent and the risk to him upon returning to the DRC. On the third issue, the FTT found that the respondent had a strong and established family life with his partner and children but held that he had failed to demonstrate the very compelling circumstances required by statute and case law for his Article 8 claim to succeed.
On 25 August 2017, the Secretary of State filed a notice of appeal against the FTT's decision on the second issue. There was no appeal by the Secretary of State against the decision on the first issue, nor by the respondent against the decision on the third issue. Permission to appeal was granted on 11 September 2017 and the appeal was heard by the Upper Tribunal (Judge Blum) on 2 November 2017. In the decision and reasons handed down on 17 November 2017, the Upper Tribunal concluded that the FTT had allowed the respondent's appeal because it believed that the relevant guidance and policy had not been properly applied, but observed that the FTT judge had not identified how the decision to revoke the respondent's refugee status had breached the UK's obligations under the Refugee Convention and that, as a result, the FTT's decision was “unsustainable”. Having reached that conclusion, the Upper Tribunal proceeded to consider afresh whether the Secretary of State's decision to revoke the refugee status infringed the Convention. It found that the respondent had not been recognised as a refugee in his own right but “because his parents were recognised as refugees” and that, as a result, any political changes in the DRC had no bearing on the circumstances in connection with which he had been recognised as a refugee. The respondent's appeal against the Secretary of State's decision was “re-made” and allowed “on the basis that the Secretary of State's decision to revoke his refugee status breached the UK's obligations under the Refugee Convention”.
The Secretary of State's application for permission to appeal was refused by the Upper Tribunal. On 12 February 2018, the Secretary of State filed a notice of appeal to this Court, citing the following two grounds of appeal:
(1) The Upper Tribunal misconstrued paragraph 339A(v) of the Immigration Rules, which reflects Article 1C(5) of the Refugee Convention, in holding that there had been no change in “the circumstances in connection with which” the respondent was recognised as a refugee.
(2) The Upper Tribunal erred in law in assuming that the respondent ought to be treated as a refugee in absence of a formal cessation of his refugee status, even in the circumstances where there is no current risk of persecution or ill-treatment on his return to his country of origin.
On 6 November 2018, Longmore LJ granted permission to appeal on both grounds.
The respondent did not file a skeleton argument in accordance with directions. Two days before the appeal hearing, the court received an application by email from solicitors who had just been instructed on his behalf seeking an adjournment on the grounds that there was insufficient time for them to prepare the appeal. It was further contended that another appeal on similar grounds had been listed for hearing in early July 2019 and that it would be appropriate to adjourn this appeal to be heard alongside that case. Having considered the email, and observations in response on behalf of the Secretary of State opposing an adjournment, this Court declined the application, taking the view that there was no good reason for adjourning the hearing and that there was every reason to expect that counsel, who had been re-instructed for the purposes of this appeal having represented the respondent before the FTT and the Upper Tribunal, would be able to prepare the case in two days, given that it involved a pure point of law. We considered that an adjournment was wholly unjustifiable given the inordinate delays that have already occurred in this litigation, the notice under s.72 having been served over six years ago. At the start of the hearing before us, Ms Jegarajah renewed her application for an adjournment, drawing our attention to difficulties that had occurred in the firm of solicitors previously instructed on behalf the respondent. Despite her submissions, we were not persuaded that the circumstances justified adjournment. Having now heard the appeal, I am for my part entirely satisfied that the respondent has not suffered any prejudice by reason of our decision to refuse the adjournment application.
The law
(a) The Refugee Convention
Article 1A(2) of the Refugee Convention defines the term “refugee” as any person who
“.. owing to well-founded fear of being...
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