The Secretary of State for the Home Department v Wilfred Mosira
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Henderson LJ,Black LJ |
| Judgment Date | 08 June 2017 |
| Neutral Citation | [2017] EWCA Civ 407 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2015/3803 |
| Date | 08 June 2017 |
[2017] EWCA Civ 407
Lady Justice Black
Lord Justice Sales
and
Lord Justice Henderson
Case No: C5/2015/3803
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
DA007182014
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik (instructed by The Government Legal Department) for the Appellant
Richard Drabble QC and Althea Radford (instructed by Turpin & Miller LLP) for the Respondent
Hearing date: 18 May 2017
Approved Judgment
This is an appeal by the Secretary of State in an immigration case. The case concerns Mr Mosira, a citizen of Zimbabwe, who came to this country at the age of 17 in 2004 pursuant to the Secretary of State's family reunion policy promulgated in 2003 ("the 2003 policy") to join his mother, who had previously been granted refugee status to stay in the United Kingdom. Under the 2003 policy, Mr Mosira was himself granted refugee status by the Secretary of State.
In 2012, Mr Mosira was convicted on two counts of sexual activity with a girl less than 16 years old, who had been aged 13 at the relevant time. Mr Mosira had been aged 25. He was sentenced to concurrent terms of imprisonment for 3 years. There is no dispute that this constituted serious criminal offending. There is also no dispute that Mr Mosira qualifies as a "foreign criminal" for the purposes of section 32 of the UK Borders Act 2007.
The Secretary of State gave notice that she intended to make an order to deport Mr Mosira back to Zimbabwe when he was released. She purported to give notice of cessation of his refugee status and then finalised her decision to make a deportation order.
Mr Mosira appealed to the First-tier Tribunal ("FTT"). His appeal was dismissed in circumstances discussed below. On appeal, by a decision of September 2014 the Upper Tribunal (UT Judge Clive Lane) allowed his appeal and set aside the FTT's decision, directing instead that there should be a fresh consideration by the Upper Tribunal itself of his appeal against the Secretary of State's decision.
In a decision promulgated on 14 August 2015, the Upper Tribunal (Knowles J and UT Judge McWilliam) re-made the decision on Mr Mosira's appeal. It allowed the appeal. It held that it had not been open to the Secretary of State to withdraw Mr Mosira's refugee status in the way she did and, in view of the low risk to the public now presented by Mr Mosira, it held that there was no sufficient public interest in deportation to justify his removal for the purposes of the 1951 Refugee Convention. This is the decision against which the Secretary of State now appeals, with permission granted by Rafferty LJ.
Legal framework
The United Kingdom is a party to the Refugee Convention of 1951, which makes provision for the protection of refugees present within the territory of a host state. Article 1A(2) states that for the purposes of the Refugee Convention the term "refugee" shall apply to any person who:
"owing to 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 …"
Article 1C provides in relevant part as follows:
"This Convention shall cease to apply to any person falling under the terms of section A if:
…
(5) He can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality …"
Article 2 of the European Convention on Human Rights ("ECHR") protects the right to life. Article 3 of the ECHR sets out a right not to be subjected to torture or inhumane treatment. They are given effect in domestic law by the Human Rights Act 1998 and other legislation.
Section 32 of the UK Borders Act 2007 provides for automatic deportation of foreign criminals, subject to certain exceptions in section 33. Those include where removal of the foreign criminal in pursuance of the deportation order would breach a person's Convention rights as set out in the ECHR and the Human Rights Act or the United Kingdom's obligations under the Refugee Convention: section 33(2).
We were not taken to all the provisions of the Immigration Rules which might be thought to bear on the issue of the status of Mr Mosira or provided with a full analysis of his position under the Rules or domestic law more generally. The Immigration Rules make provision for the grant of asylum or what is termed "refugee status" in para. 334. As para. 334 currently stands, it seems that it does not apply to a person given leave to enter on the basis of family reunion rules (certainly, we were not shown that it does). We were not shown the version of the Rules in place when Mr Mosira was originally granted refugee status pursuant to the 2003 policy. I assume it was in the same form. On a proper analysis, therefore, since Mr Mosira was only granted refugee status under the 2003 policy for family reunion, it seems that he was not granted such status under para. 334 of the Immigration Rules. This was not a point appreciated or articulated by the representatives for the Secretary of State in presenting her case at any stage.
Paragraph 338A of the Immigration Rules in their current form states that "A person's grant of refugee status under paragraph 334 shall be revoked or not renewed if any of paragraphs 339A to 339AB apply". Paragraph 339A of the Immigration Rules in their current form makes provision for when the Refugee Convention shall be taken to cease to apply. It reflects Article 1C of that Convention. It provides in relevant part that it applies:
"when the Secretary of State is satisfied that … (v) they can no longer, because the circumstances in connection with which they have been recognised as a refugee have ceased to exist, continue to refuse to avail themselves of the protection of the country of nationality;
…
In considering (v) …, the Secretary of State shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded."
The representatives of the Secretary of State at each stage have assumed that this provision applies in relation to Mr Mosira. However, it seems doubtful that it does, because he was not granted refugee status under para. 334 of the Rules.
The Refugee Convention does not impose an obligation on Contracting States to grant leave to enter or leave to remain in order to achieve family reunion with a sponsor who has been granted refugee status in the host state, but the UN Human Rights Committee exhorts Contracting States to do this.
Mr Mosira was given leave to enter and was accorded "refugee status" in 2004 pursuant to the 2003 policy governing applications made by family members who wanted to be reunited with a person in the UK who has been "recognised as a refugee", as Mr Mosira's mother had been. Paragraph 3.1 of the 2003 policy provided as follows:
"3.1 Where the sponsor has refugee status
If a person has been recognised as a refugee in the UK we will normally recognise family members in line with them. If the family are abroad we will normally agree to their admission as refugees.
It may not always be possible to recognise the family abroad as refugees – e.g. they may have a different nationality to the sponsor or they may not wish to be recognised as refugees. However, if they meet the criteria set out in paragraph 2 [as Mr Mosira did, as the minor child of the sponsor with refugee status] they should be admitted to join the sponsor. The sponsor is not expected to meet the maintenance and accommodation requirements of the Immigration Rules."
The 2003 policy was replaced in 2007 with some new Immigration Rules dealing with family reunion. Under the new Rules, a family member of a person with refugee status shall be granted leave to enter, but will not himself be accorded refugee status.
Articles 32 and 33 of the Refugee Convention provide in relevant part as follows:
" Article 32: Expulsion
(1) The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
…
Article 33: Prohibition of Expulsion or Return ('Refoulement')
(1) No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
By section 72 of the Nationality, Immigration and Asylum Act 2002, Parliament has made provision in relation to the construction and application of Article 33(2) of the Refugee Convention. Section 72(2) provides:
"A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is –
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least two years."
Sub-section (6) provides:
"A presumption under subsection (2), ( 3) or (4) that a person constitutes a danger to the community is rebuttable by that person."
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