Secretary of State for the Home Department v MS (Somalia)

JurisdictionEngland & Wales
JudgeLord Justice Hamblen,Lord Justice Newey,Lord Justice Underhill
Judgment Date29 July 2019
Neutral Citation[2019] EWCA Civ 1345
Docket NumberCase No: C5/2018/1348
CourtCourt of Appeal (Civil Division)
Date29 July 2019

[2019] EWCA Civ 1345

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE KOPIECZEK

RP/00084/2015 AA014612015

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

(Vice-President of the Court of Appeal (Civil Division))

Lord Justice Hamblen

and

Lord Justice Newey

Case No: C5/2018/1348

Between:
Secretary of State for the Home Department
Appellant
and
MS (Somalia)
Respondent

John-Paul Waite (instructed by Government Legal Department) for the Appellant

Stephen Vokes and Emma Rutherford (instructed by Turpin & Miller LLP) for the Respondent

Hearing date: 11 July 2019

Approved Judgment

Lord Justice Hamblen

Introduction

1

The Respondent, MS, was granted asylum on 8 October 2012. On 15 September 2015, the Appellant (“the SSHD”), informed MS that she had ceased his refugee status and that he had been made subject to a deportation order. MS appealed against that decision and his appeal was allowed by the First Tier Tribunal (“FTT”) in a decision promulgated on 20 September 2017. The SSHD's appeal to the Upper Tribunal (“UT”) was dismissed in a decision promulgated on 22 March 2018.

2

The SSHD appeals against the UT decision on three grounds: (1) the FTT and the UT erred in concluding that the SSHD cannot “in principle” rely upon the availability of internal relocation as the basis for the cessation of refugee status under Article 1C(5) of the Refugee Convention (“the Convention”); (2) the FTT and the UT erred in failing to apply s.72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) to MS's case, and (3) the FTT erred in concluding that the removal of MS to Somalia would breach this country's obligations under Article 3 of the ECHR, and the UT should have so found.

3

Section 72 of the 2002 Act involves a statutory presumption for the purpose of the construction and application of Article 33(2) of the Convention (exclusion from protection) that a person, such as MS, who has been sentenced to a period of imprisonment for at least two years has been convicted of a particularly serious crime and constitutes a danger to the community of the UK. It also involves a procedure whereby the SSHD issues a certificate that the presumption applies.

Factual background and immigration history

4

MS is a national of Somalia who was born on 14 March 1989.

5

He entered the UK with his mother and 6 siblings on 21 November 2002 at the age of 13 and claimed asylum as his mother's dependant. The application was refused but the family were granted exceptional leave to remain. His mother applied for asylum in May 2007, with the appellant and his siblings again cited as dependants upon that application. The application was refused on 28 November 2010 but his mother's appeal was allowed on 15 July 2011 and both she and her children (with the exception of MS) were granted asylum on 28 July 2011.

6

In allowing the mother's appeal, the FTT noted that she resided in a town called Goob Weyn which is located in the Lower Juba region of Southern Somalia. The reason for allowing the appeal was that she was at risk of persecution as a member of the minority Ashraf clan and would be returning to Somalia as a lone woman.

7

MS was not initially granted asylum in line with that of his mother due to the need to give further consideration to his criminality and as a consequence of the parallel immigration proceedings in his case. That decision was subsequently withdrawn and he was granted asylum in line with the remainder of his family on 8 October 2012.

8

On 24 September 2012, MS had been convicted of conspiracy to defraud. There was a delay in the passing of sentence because MS absconded, but on 31 March 2014 MS was sentenced to 21 months imprisonment for this offending.

9

On 13 November 2014, MS was served with a decision to deport. The decision certified the case under s.72 of the 2002 Act although the SSHD acknowledges that this appears to have been in error because the sentence which was passed was for less than two years imprisonment.

10

On 1 May 2015, MS was notified of the SSHD's intention to cease his refugee status and he was invited to submit representations in response. Notification was also provided to the UNHCR. Representations were received from MS on 8 June 2015 and from the UNHCR on 17 June 2015.

11

On 15 September 2015, MS was made the subject of a deportation order and a decision to refuse his protection and human rights claim. Included within this was a decision to cease MS's refugee status.

12

On 15 April 2016, following an appeal being lodged against the decision to deport, MS was sentenced to 25 months imprisonment following convictions for assault occasioning actual bodily harm. MS also received a three-month consecutive sentence in respect of a separate conviction for battery.

13

On 15 June 2017, the FTT adjourned MS's appeal in order for the SSHD to take account of his most recent sentence.

14

On 1 August 2017, the SSHD served a supplementary decision letter maintaining the original decisions to deport and to refuse his human rights claim.

15

In the supplementary decision letter the SSHD stated that she considered the offences of beating and assault occasioning actual bodily harm as extremely serious, as reflected in the Judge's sentencing remarks and the sentence imposed.

16

It was noted that since MS's arrival in the UK, he had accumulated 18 convictions comprising 25 offences and that his most recent conviction clearly demonstrated an escalation in seriousness. In summary, between 7 January 2006 and 20 September 2015, he had committed the following offences: 3 offences against the person; 2 offences against property; 1 fraud and kindred offence; 5 theft and kindred offences; 3 public disorder offences, 3 offences relating to police/courts/prisons; 1 drug offence; 1 firearms/shotguns/offensive weapons and 7 miscellaneous offences. For those offences he received various sentences including imprisonment; detention and training orders; conditional discharges; suspended sentences; supervision orders; curfew requirement – electronic monitoring; fines; costs and victim surcharges. His driving licence was also endorsed. The SSHD stated that it was therefore considered that he was an habitual offender who has very little, if any, regard for the wellbeing and safety of the UK public.

17

It was further noted that MS had failed to report to Immigration on 11 January 2017, after being granted bail by the IAC on 5 January 2017 and had been recalled to prison on 25 February 2017 on non-compliance grounds. Previous to this he had breached a suspended sentence and failed to surrender to custody at the appointed time.

18

The letter concluded:

“Your most recent convictions clearly indicate that you have not addressed your offending behaviour despite the past penalties imposed by the courts. It is also evident that the threat of deportation has done nothing to curb your propensity to re-offend.

In light of the foregoing, the Notice of Decision to Refuse your Protection and Human Rights claim dated 15 September 2015 is hereby maintained. It is considered that your deportation from the UK continues to be in the best interests of the UK public.”

19

The SSHD accepts that the letter ought to have certified the case under s.72 of the 2002 Act, but this was not done. It would appear that the reason for this was that the author of the letter considered that there was no necessity to certify the claim under s.72 because MS's refugee status had already been ceased. The SSHD can, however, both cease status and certify the claim under s72, and this is commonly done.

20

On 20 September 2017, MS's appeal was allowed by the FTT on the basis that the criteria for cessation of refugee status had not been made out, that MS should continue to have protection under the Convention and Article 3 of the ECHR and that he was therefore excluded from deportation. The FTT also held that the requirement to consider s.72 did not arise as the SSHD could not rely on a certificate relating to a conviction which pre-dated the grant of asylum to MS.

21

The SSHD appealed to the UT on the basis that the FTT's approach to cessation and Article 3 was erroneous. That appeal was dismissed by the UT on 22 March 2018.

22

Permission to appeal to the Court of Appeal was granted by Haddon-Cave LJ on 10 December 2018.

The grounds of appeal

23

The grounds of appeal are:

(1) Ground 1 — Cessation of refugee status.

The FTT erred in its approach to the question of cessation of refugee status in concluding that a cessation decision could not in principle turn upon the availability of internal relocation. Internal relocation can be relied on for the purpose of ceasing a person's refugee status.

(2) Ground 2 — Failure to apply s.72 of the 2002 Act.

The FTT erred in not considering whether MS had rebutted the statutory presumption in s.72(1) and (2) of the 2002 Act. MS had committed a serious offence and constituted a danger to the community and accordingly should have been excluded under Article 33(1) of the Convention. The FTT concluded in error that MS fell outside s.72(1) and (2) because the SSHD had failed to certify his case under s.72(9). The operation of s.72 is not contingent upon a certificate, and in any event, there was one in place in respect of an earlier criminal offence.

(3) Ground 3 — Article 3 ECHR.

The FTT erred in its approach to Article 3 of the ECHR. It treated the guidance in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) as determinative of whether humanitarian conditions upon return to Mogadishu would breach MS's rights. This approach was incompatible with Secretary of State for the Home Department v Said [2016] EWCA Civ 442.

(1) Ground 1 — Cessation of refugee status.

The legal framework

24

Article 1A(2) of the...

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