The Secretary of State for the Home Department v MA (Somalia)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice Arden |
| Judgment Date | 02 May 2018 |
| Neutral Citation | [2018] EWCA Civ 994 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/3106 |
| Date | 02 May 2018 |
[2018] EWCA Civ 994
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
the Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Clive Lane
AA014612015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
and
Lord Justice Peter Jackson
Case No: C5/2016/3106
John-Paul Waite (instructed by Government Legal Department) for the Appellant
Daniel Sills (instructed by JD Spicer Zeb) for the Respondent
Hearing dates: 17 April 2018
Judgment Approved
Issues for Determination and Summary of Conclusions
The issues which we have to decide on this appeal include: (1) the test to be applied by the state which recognised a person as a refugee (“the recognising state”) when determining whether (or that) a refugee's status can be ended (“a “cessation decision”) under the Qualification Directive (see paragraph 3 below), (2) whether a cessation decision can be made without also considering the question whether the refugee's rights under Article 3 of the European Convention on Human Rights (“the Convention”) would be violated if he were to be returned to his country of origin, (3) whether Article 3 would be violated if a person to be returned is at risk of being subjected to living standards which fall below humanitarian standards in his country of origin, (4) whether, on the facts of this case, the tribunals applied the right test for an appeal from a cessation decision, and (5) whether, in the case of the First-tier Tribunal (“the FTT”), any remittal should be on the basis of the existing factual findings or whether certain of those findings should be set aside because the outcome of the fact-finding process was perverse. These issues arise from the orders of the FTT and the Upper Tribunal in these proceedings allowing appeals from the Secretary of State's decision to cease the respondent's refugee status under the Qualification Directive.
For the reasons given below, and in the light of the careful submissions that we have had on the important decision of the Court of Justice of the European Union (“CJEU”) in Joined Cases C-175/08, C-176/08, C-178/08, C0179/08, Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi & Dier Jamal v Bundesrepublik Deutschland, 2 March 2010 (“ Abdulla”), I have concluded that:
(1) A cessation decision is the mirror image of a decision determining refugee status. By that I mean that the grounds for cessation do not go beyond verifying whether the grounds for recognition of refugee status continue to exist. Thus, the relevant question is whether there has been a significant and non-temporary change in circumstances so that the circumstances which caused the person to be a refugee have ceased to apply and there is no other basis on which he would be held to be a refugee. The recognising state does not in addition have to be satisfied that the country of origin has a system of government or an effective legal system for protecting basic human rights, though the absence of such systems may of course lead to the conclusion that a significant and non-temporary change in circumstances has not occurred.
(2) It is not appropriate to refer this matter to the CJEU for a preliminary ruling.
(3) The question whether Article 3 would be violated by the refugee's return to his country of origin is not part of the cessation decision but separate from it, and there is no violation by reason only of the absence of humanitarian living standards on return.
(4) Article 3 is not normally violated by sending a refugee back to his country of origin where there is a risk that his living conditions will fall below humanitarian standards.
(5) The Tribunals did not apply the right test for an appeal against a cessation decision.
(6) The matter should be remitted to the FTT on the basis that some factual findings are not preserved.
The Qualification Directive
The issues of law as to the requirements for the cessation of refugee status fall in this case to be decided under the Qualification Directive 2004/83/EC (“the Qualification Directive” or “QD”). The QD, which has been superseded for member states of the EU other than the UK, Ireland and Denmark by a directive known as “the recast Qualification Directive”, sets EU-wide standards for dealing with asylum claims that must be reflected in the legislation of the individual member states dealing with asylum claims as a shared competence. The QD is intended to take account of the member states' obligations under the 1951 Convention relating to the Status of Refugees 28 July 1951 and Protocol of 31 January 1967 (“the Refugee Convention”), but may involve further protection. The relevant provisions of the QD are set out in the Appendix to this judgment. The member states of the EU may make references to the CJEU for preliminary rulings on issues as to the interpretation of the QD, and this judgment will need to consider one particular decision of the CJEU on the QD ( Abdulla).
The Office of the UN High Commission for Refugees (“UNHCR”) has a supervisory responsibility for providing guidance on the operation of the Refugee Convention. For instance, Recital 15 of the QD states that consultations with the UNHCR “may provide valuable guidance for Member States when determining refugee status according to Article 1 of the Geneva Convention”. In Adan v Secretary of State for the Home Department [2001] 2 AC 477 at 520, Lord Steyn held that “the UNHCR Handbook, although not binding on states, has high persuasive authority, and is much relied on by domestic courts and tribunals: Aust, Modern Treaty Law and Practice (2000), p 191 [now (2013) (3 rd ed) (Cambridge) p 212].”
History of respondent's refugee status
The respondent is a Somali national. He left his home city, Mogadishu, in 2003 for Yemen. He arrived in the UK and claimed asylum on 16 July 2004. His application was refused on 13 November 2004 but was subsequently allowed on 15 February 2005. On 7 March 2005, he was granted asylum and indefinite leave to remain on the basis of ethnic origin as he belonged to the Reer Hamar clan.
Refugee status falls to be considered in the context of many diverse societies and political systems. In the case of Somalia, clans play an important part in the governance of the country and the structure of its communities. The Home Office Country Information Guidance – South and Central Somalia: Majority Clans and Minority Groups states that:
due to the absence of functioning structures in parts of Somalia the clans and their elders have regained a political function and a substantial influence on the organisation of society. However, clans have no centralised administration or government. During the civil war in Somalia, clan elders increasingly became targets of violence, which eroded their power, nevertheless they still have a significant influence on society and politics.
(The civil war affected Mogadishu until at least 2011). The report later stated that the clan relationship was regulated by Somali customary law, known as xeer, which is used to govern communities. According to the Home Office report, citing a January 2015 Minority Rights Group International report, in some cases, the clan may provide a social security welfare system for its members.
The respondent has a history of offending but this is not relevant for the purposes of this appeal and so I propose to say no more about it. The sole focus in this appeal is the Secretary of State's decision to cease the respondent's refugee status on the grounds that the fear which led to the grant of refugee status no longer exists.
The conditions in Somalia for a returning refugee depend on the level of support available to him, including support in the form of remittances from the UK. The respondent has been in the UK for eleven years and his family here consists of a brother and a sister. The brother is a British citizen. His sister is a British citizen who lives in the UK with her husband and seven children. There is an issue as to the extent to which the respondent's UK family would support him in Somalia.
MOJ: The Upper Tribunal's most recent country guidance decision on Mogadishu, showing changed circumstances
On 3 October 2014, the Upper Tribunal handed down a new country guidance decision for Somalia: MOJ and others (Return to Mogadishu) (CG) [2014] UKUT 442. This held that ordinary civilians returning to Mogadishu were no longer at any risk from security forces, international forces or terrorist organisations. Such persons would normally look to their family or clans for support on return. The paragraphs relevant to the present appeal read as follows:
406. We consider, in the light of the evidence as a whole, that the position as set out by UNHCR in its report published on 25 September 2013 continues to reflect an appropriate starting point today, upon which to build in the light of our review of the up to date evidence:
With regard to Mogadishu, the personal circumstances of an individual need to be carefully assessed. UNHCR considers an IFA/IRA as reasonable only where the individual can expect to benefit from meaningful nuclear and/or extended family support and clan protection mechanisms in the area of prospective relocation. When assessing the reasonableness of an IFA/IRA [internal flight option/internal relocation alternative] in Mogadishu in an individual case, it should be kept in mind that the traditional extended family and community structures of Somali society no longer constitute as strong a protection and coping mechanism in Mogadishu as they did in the past. Additionally, whether the members of the traditional networks are able to genuinely offer support to the applicant in practice also needs to be evaluated, especially given...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2019-11-14, RP/00026/2019
...directed myself to the clutch of recent judgments of the Court of Appeal, including MM (Zimbabwe) [2017] EWCA Civ 797, MA (Somalia) [2018] EWCA Civ 994, KN (DRC) [2019] EWCA Civ 1665, JS (Uganda) (cited above), and Mosira [2017] EWCA Civ Before setting out my central conclusions, I deal wit......
-
Upper Tribunal (Immigration and asylum chamber), 2019-08-19, RP/00024/2017
...persecution can no long be regarded as well-founded.” The Court of Appeal in Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994, further to the CJEU decision in Joined Cases C-175/08, C-176/08, C-178/08, C-179/08, Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, ......
-
Upper Tribunal (Immigration and asylum chamber), 2022-02-02, [2022] UKUT 00033 (IAC) (OA (Somalia) (CG))
...cessation of refugee status”, and a cessation decision is the “mirror image” of a decision determining refugee status (MA (Somalia) [2018] EWCA Civ 994, per Arden LJ at [47] and [51]). “The relevant question”, held Arden LJ at paragraph 2, “… whether there has been a significant and non-tem......
-
Upper Tribunal (Immigration and asylum chamber), 2020-02-04, RP/00121/2018
...prospect of return to an IDP camp was not sufficient to invoke Article 3 – see Said [2016] EWCA Civ 442, upheld in MA (Somalia) [2018] EWCA Civ 994; that although the appellant would find the relocation process difficult, his status as a healthy adult male will put him in no worse position ......