THTN v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice William Davis,Lady Justice Nicola Davies,Lord Justice Peter Jackson |
| Judgment Date | 20 October 2023 |
| Neutral Citation | [2023] EWCA Civ 1222 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-000214 |
[2023] EWCA Civ 1222
Lord Justice Peter Jackson
Lady Justice Nicola Davies
and
Lord Justice William Davis
Case No: CA-2022-000214
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE LANE
RP/00006/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Zainul Jafferji and Sheraaz Hingora (instructed by Burton and Burton) for the Appellant
William Hansen and Matthew Wyard (instructed by Government Legal Department) for the Respondent
Hearing date: 11 October 2023
Approved Judgment
Introduction
The appellant is a Vietnamese national born in October 1967. She was arrested in the UK in July 2008 on suspicion of cultivating cannabis. On arrest she said that she had arrived in the UK in 2005 in the back of a lorry. She was not convicted of any offence following that arrest. She was granted temporary admission. On 10 March 2010 the appellant claimed asylum. Her claim raised the issue of whether she had been trafficked. She was referred as a potential victim of trafficking. The Single Competent Authority made a conclusive positive grounds decision in her favour. On 18 October 2010 the Secretary of the State for the Home Department (“SSHD”) concluded that there was a reasonable degree of likelihood that the appellant may face persecution in Vietnam as a victim of trafficking. Therefore, she was entitled to refugee status. The SSHD granted the appellant asylum and leave to remain for a period of 5 years. In November 2011 the appellant's two daughters joined the appellant in the UK. They were granted leave to remain in line with the appellant.
On 15 April 2015 the appellant pleaded guilty in the Crown Court at Stafford to an offence of kidnapping. Her plea was tendered very late in the proceedings. The sentencing judge found that she played a significant role in a very serious offence committed with five other people. He described the conduct as “evil” and “wicked”. The appellant was sentenced on 17 April 2015 to a period of 11 years 6 months' imprisonment.
As a result of that conviction, the SSHD considered whether to make a decision to deport the appellant. In November 2015 the appellant made an application for indefinite leave to remain by reference to her refugee status. This application was considered within the deportation decision process. On 6 July 2016 the appellant was served with a decision to deport. The SSHD informed her that the appellant was considered to be a danger to the community due to the serious crime she had committed. As a result section 72 of the Nationality, Immigration and Asylum Act 2002 was engaged so as to exclude the appellant from the protection in Article 33(1) of the Refugee Convention 1951.
On 22 July 2016 the appellant via her solicitors made written submissions to the SSHD in respect of the deportation decision. It was said that deportation to Vietnam would lead to a violation of her rights under Article 3 of the European Convention on Human Rights. This was because the appellant would be at risk from those who had trafficked her, from her ex-husband and because her health would suffer due to inadequacy of medical treatment in Vietnam for those suffering from HIV.
On 5 May 2017 the SSHD notified the appellant that she was considering revoking or ceasing the appellant's refugee status. It was said that the appellant no longer would face treatment amounting to persecution were she to be returned to Vietnam. The UNHCR were informed of the position. In response to that notification various documents were provided by the appellant to the SSHD including a lengthy report from a Dr Tran in relation to trafficking in Vietnam and the health care system in that country. The UNHCR responded on 2 January 2018.
On 31 January 2019 in a lengthy and detailed written decision the SSHD made a deportation order, revoked the appellant's protected status and refused her human rights claim. The appellant appealed against the decision to revoke her refugee status and the refusal of her human rights claim. Her appeal to the First-Tier Tribunal (“F-TT”) was heard on 10 February and 5 March 2021. Her appeal was dismissed on 16 March 2021. She was granted permission to appeal to the Upper Tribunal (“UT”) on 14 May 2021. After a hearing on 25 August 2021 the UT, on 28 October 2021, dismissed the appeal. The appellant applied to the UT for permission to appeal to this court. On 15 November 2021 permission was refused.
For some reason it was not until January 2022 that the appellant was notified of that refusal. She applied promptly for permission to appeal to this court. Unfortunately, an administrative error meant that her application did not enter the system until June 2022. There were further delays which largely were not of the appellant's making. Permission to appeal was given by Lord Justice Nugee on 13 March 2023.
The Case Before the First-tier Tribunal
The F-TT considered three issues. First, was it appropriate for the SSHD to certify pursuant to section 72 of the 2002 Act that the appellant was excluded from protection under the Refugee Convention? Second, was the SSHD's decision to revoke or cease the appellant's status as a refugee correct? Third, would a return of the appellant to Vietnam violate her rights under Article 3 of the Convention? The F-TT found against the appellant on all three issues.
The first issue was not the subject of any appeal to the UT. It is not a matter with which this court has been concerned. It is unnecessary for me to consider the certification issue any further. The consequence of the section 72 certificate remaining in force was that, even if the cessation argument were to succeed, any appeal on that ground would be dismissed but the appellant would be entitled to a determination that the decision to revoke was contrary to the Refugee Convention so that she would remain a Convention refugee. For that reason, the cessation argument remained one of significance.
In relation to cessation of refugee status, the SSHD relied on paragraph 339A(v) of the Immigration Rules which provides as follows:
“ This paragraph applies when the Secretary of State is satisfied that one or more of the following applies:
…….(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 essential features of the SSHD's case were: there had been fundamental and durable changes in Vietnam in relation to the support of trafficking victims; there was HIV treatment generally available in Vietnam; there was no general risk of female victims of trafficking facing reprisals or re-trafficking on return to Vietnam; the appellant could re-establish herself on return to Vietnam and, if necessary, relocate within Vietnam.
The written representations on 2 January 2018 from UNHCR on which the appellant relied were summarised by the F-TT. The opinion of the UNHCR was that current conditions in Vietnam did not warrant the application of Article 1C(5) of the Refugee Convention by which the appellant could “no longer, because the circumstances in connexion with which (she) has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality”. The UNHCR considered that there was insufficient evidence that such changes as had occurred in Vietnam had affected the personal circumstances of the appellant. It was said that the alternative of internal relocation was in principle not a relevant consideration when making a cessation decision.
The F-TT stated that the relevant principles in relation to any consideration of a cessation decision were set out in SSHD v MA (Somalia) [2018] EWCA Civ 994. It found that a cessation decision is a mirror image of an initial decision determining refugee status. The F-TT said (at paragraph 46 of its decision) 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.” These words were taken verbatim from MA (Somalia) at [2].
Under the heading “consideration of the evidence” the F-TT referred to the most recent Home Office CPIN (country policy and information note) Vietnam: Victims of trafficking. It acknowledged that the views of the UNHCR were “to be carefully considered but carry no special weight or status simply by virtue of their authorship”. However, it noted that the CPIN was more recent than the letter from the UNHCR. The CPIN was completed in May 2019 with the Home Office fact finding mission having visited Vietnam in February 2019. The report was published in April 2020.
The F-TT referred to a decision of the Upper Tribunal ( Nguyen [2015] UKUT 170 IAC) which concerned another victim of previous trafficking in Vietnam and the risks such a victim would face before going on to cite at some length paragraphs in the CPIN. In summary the matters to which the F-TT referred were:
• There was no case of which any in country source was aware of re-trafficking of a returning trafficking victim though there was some risk of re-trafficking where there was an...
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