Upper Tribunal (Immigration and asylum chamber), 2024-03-12, UI-2022-005886
| Appeal Number | UI-2022-005886 |
| Hearing Date | 26 February 2024 |
| Date | 12 March 2024 |
| Published date | 27 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-005886
First-tier Tribunal No: RP/00063/2020
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-005886 |
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First-tier Tribunal No: RP/00063/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 12th of March 2024
Before
DEPUTY UPPER TRIBUNAL JUDGE JARVIS
Between
LT
(ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: No representative
For the Respondent: Mr N. Wain, Senior Home Office Presenting Officer
Heard at Field House on 26 February 2024
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant and/or any member of his family is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant and/or any member of his family. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
Introduction
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This decision should be read with the earlier error of law decision issued on 13 September 2023, in which Upper Tribunal Judge Lane and I set aside the decision of First-tier Tribunal Judge Plowright on the basis of error of law.
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As we explained at para. 26, the effect of our error of law decision was that the remaking of the decision was to look at the narrow question of how the Appellant would reasonably likely behave on return to Gambia set into the context of his own views about the current president, as well as the background evidence about the current government’s view of political dissent.
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The resumed hearing was initially listed to be heard on 18 October 2023 but had to be adjourned because both parties sought to rely upon further evidence which had not been produced in accordance with the Upper Tribunal’s general directions.
The relevant background
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In brief, the Appellant was originally granted refugee status in the UK by the Respondent on the basis of his anti-government activities carried out in the UK. The Respondent also accepted that the Appellant was a journalist in Gambia and that he had been a member of the CCG (which was an anti-government organisation in that country).
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The Respondent has equally not challenged Judge Plowright’s finding that the Appellant is a member of the UDP and that he has posted comments on Facebook which are critical of President Barrow.
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As explained in the error of law decision, the Respondent’s underlying reason for seeking to revoke the Appellant’s refugee status was based primarily around the change of president in 2016.
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In the interim the Appellant has been granted periods of limited Leave to Remain (the first until 18 May 2023) and more recently a further grant until 18 May 2026.
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The Appellant’s appeal is therefore brought under s. 82(1)(c) read with s. 84(3) of the NIAA 2002.
The remaking hearing
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The Appellant was not represented and confirmed that he was not expecting a representative; I therefore concluded that it was fair and in the interests of justice to continue to conclude the appeal.
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I confirmed with the Appellant that he had received and had had time to read and absorb the two reports submitted by the Respondent: the Freedom House report on Gambia from 2023 and the US State Department’s human rights report in respect of Gambia covering 2022. The Appellant confirmed that he had received those reports and had read them.
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Mr Wain indicated that he had not seen the additional material which the Appellant served in compliance with the Upper Tribunal’s directions and so I forwarded him the stitched bundle so that he could consider that material. Mr Wain confirmed that he had had sufficient time to read the additional Appellant’s evidence and prepare his case.
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The Appellant was then cross-examined by Mr Wain and at the end of those questions I firstly heard submissions from the Respondent. In order to act fairly towards the Appellant, and bearing in mind that he was not represented, I gave the Appellant time to consider those submissions, after which he confirmed that he was ready to make his own representations.
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Again, in order to assist the Appellant, I took him through the new material which he had provided for the remaking hearing and asked him questions in order to fully understand their relevance and the Appellant’s overall case at the date of the hearing.
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In essence, the Respondent relies upon the Freedom House and US State Department reports as showing a material improvement in the general political conditions in Gambia in recent years; the Appellant’s case is that there is clear evidence of the current president seeking to use persecutory acts in order to suppress political dissent.
Findings and reasons
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In coming to my conclusions, I have had careful regard to the Upper Tribunal’s stitched bundle of 227 pages which includes the two additional reports served by the Respondent for the remaking hearing as well as the original Respondent’s bundle of 106 pages. This bundle also contains the Appellant’s new evidence at pages 12 to 24.
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I have also factored into my assessment the evidence provided to the First-tier Tribunal in an email dated 25 August 2022 which included evidence of violent crackdowns of protests against President Barrow’s decision to stay beyond his promised term of 3 years (the Memorandum of Understanding, dated 1 December 2016). Some of these demonstrations have been led by the ‘Three Years Jotna’ movement.
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I also note that the 2017 CPIN (Gambia: political opinion) relied upon by the Respondent in the decision letter is no longer publicly available and appears to have been removed from the Respondent’s website on 17 June 2021. The Respondent does not currently have a published guidance document on political dissidence in Gambia.
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In assessing the revocation issues, I have applied PS (cessation principles) Zimbabwe [2021] UKUT 283 (IAC):
“1. The correct approach to cessation in Article 1(C) of the Refugee Convent ion, Article 11 of the Qualification Directive 2004/83 and paragraph 339A of the Immigration Rules can be summarised as follows:
(i) There is a requirement of symmetry between the grant and cessation of refugee status because the cessation decision is the mirror image of a decision determining refugee status i.e. the grounds for cessation do not go beyond verifying whether the grounds for recognition of refugee status continue to exist - see Abdulla v Bundesrepublik Deutschland (Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08) [2011] QB 46 at [89] and SSHD v MA (Somalia) [2019] EWCA Civ 994, [2018] I mm AR 1273 at [2] and [46].
(ii) "The circumstances in connection with which [a person] has been recognised as a refugee" are likely to be a combination of the general political conditions in that person's home country and some aspect of that person's personal characteristics. Accordingly, a relevant change in circumstances might in a particular case also arise from a combination of changes in the genera l political conditions in the home country and in the individual's per sonal characteristics, or even from a change just in the individual's persona l characteristics, if that change means that she now falls outside a group likely to be persecuted by the authorities of the home state. The relevant change must in each case be durable in nature and the burden is upon the Respondent to prove it - see Abdulla at [76] and SSHD v MM (Zimbabwe) [2017] EWCA Civ 797, [2017] 4 WLR 132 at [24] and [36].
(iii) The reference in the Qualification Directive (as replicated in paragraph 339A) to a "change in circumstances of such a significant and non-temporary nature" will have occurred when the factors which formed the basis of the refugee's fear of persecution have been "permanently eradicated" - see Abdulla at [73] wherein it was pointed out that not only must the relevant circumstances have ceased to exist but that the individual has no other reason to fear being persecuted.
(iv) The relevant test is not change in circumstances, but whether circumstances in which status was granted have "ceased to exist" and this involves a wider ex amination - see SSHD v KN (DRC) [2019] EWCA Civ 1655 at [33].
(v) The views of the UNHCR are of considerable importance - HK (Iraq) v SSHD [2017] EWCA Civ 1871 at [41], but can be departed from.
2. It is therefore for the SSHD to demonstrate that the circumstances which justified the grant of refugee status have ceased to exist and that there are no other circumstances which would now give rise to a well-founded fear of persecution for reasons covered by the Refugee Convention. The focus of the assessment must be on: (i) the personal circumstances and relevant country background evidence including the country guidance ('CG') case-law appertaining at the time that refugee status was granted and; (ii) the current personal circumstances together with the current country background evidence including the applicable CG.”
Have the previous circumstances ceased to exist?
General political conditions in Gambia
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