Upper Tribunal (Immigration and asylum chamber), 2019-08-19, RP/00024/2017
| Jurisdiction | UK Non-devolved |
| Date | 19 August 2019 |
| Published date | 10 October 2019 |
| Hearing Date | 25 March 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | RP/00024/2017 |
Appeal Number: RP/00024/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00024/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 25th March 2019 |
On 19th August 2019 |
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Before
UPPER TRIBUNAL JUDGE JACKSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
AS
(ANONYMITY DIRECTION MADe)
Respondent
Representation:
For the Appellant: Ms S Chuna, Home Office Presenting Officer
For the Respondent: Ms S Aziz of Counsel, instructed by Duncan Lewis & Co Solicitors
DECISION AND REASONS
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The Secretary of State appealed against the decision of First-tier Tribunal Judge Bird promulgated on 25 May 2018 in which AS’ appeal was allowed on asylum grounds and also on Article 3 and Article 8 human rights grounds. In a decision promulgated on 25 May 2018, the Upper Tribunal found an error of law in that decision, set it aside and gave directions for the re-hearing of the appeal in the Upper Tribunal. The background to this appeal is set out in the error of law decision annexed and will not be repeated herein save as where necessary. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with AS as the Appellant and the Secretary of State as the Respondent.
Immigration Law and Rules Relevant to the Appellant
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So far as relevant to this appeal, section 32 of the UK Borders Act 2007 states that a foreign criminal is a person who is not a British Citizen, who is convicted in the United Kingdom of an offence and sentenced to a period of imprisonment of at least 12 months. Section 32(5) of that Act requires the Secretary of State to make a deportation order in respect of a foreign criminal unless one of the exceptions in section 33 applies. The first exception is where removal of the foreign criminal would breach his or her rights protected by the European Convention on Human Rights or would place the United Kingdom in breach of its obligations under the Refugee Convention.
Refugee Convention & cessation
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It is for an Appellant to show that he is a refugee. By Article 1A(2) of the Refugee Convention, a refugee is a person who is out of the country of his or her nationality and who, owing to a well-founded fear of persecution for reasons of race, religion, nationality or membership of a particular social group or political opinion, is unable or unwilling to avail him or herself of the protection of the country of origin.
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The degree of likelihood of persecution needed to establish an entitlement to asylum is decided on a basis lower than the civil standard of the balance of probabilities. This was expressed as a “reasonable chance”, “a serious possibility” or “substantial grounds for thinking” in the various authorities. That basis of probability not only applies to the history of the matter and to the situation at the date of decision, but also to the question of persecution in the future if the Appellant were to be returned.
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Under the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, a person is to be regarded as a refugee if they fall within the definition set out in Article 1A of the Refugee Convention (see above) and are not excluded by Articles 1D, 1E or 1F of the Refugee Convention (Regulation 7 of the Qualification Regulations).
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Article 1C of the Refugee Convention provides that the 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 connection 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; Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality.”
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Article 11 of Council Directive 2004/83/EC (the Qualification Directive) deals with the same issue as follows:
“1. A third-country national or a stateless person shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required.
2. In applying paragraph 1, Member States shall have regard to whether the change in circumstances is of such a significant and non-temporary nature that the person eligible for subsidiary protection no longer faces a real risk of serious harm.”
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Finally, paragraph 339A of the Immigration Rules also deals with this issue in (v) as follows:
“(v) he can no longer, because the circumstances in connection 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 nationality.”
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Paragraph 339A goes on to state that, “In considering (v) and (vi), 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 long be regarded as well-founded.”
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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, Hamrin Mosa Rashi & Dier Jamal v Bundesrepublik Deutschland, 2 March 2010, concluded that: “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.” [paragraph 2(1)].
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Although in MS (Art 1C(5) Mogadishu (Somalia) [2018] UKUT 196 (IAC) the Upper Tribunal found that the Respondent is not entitled to cease a person’s refugee status pursuant to article 1C(5) of the Refugee Convention solely on the basis of a change of circumstances in one part of the country of proposed return; this was before the Court of Appeal’s decision in MA (Somalia) referring to the symmetry between a decision determining refugee status and cessation. In AMA (Article 15(c) – proviso – internal relocation) Somalia [2019] UKUT 11 (IAC), the Upper Tribunal found that changes in a refugee’s country of origin affecting only part of the country may, in principle, lead to cessation of refugee status, albeit it is difficult to see how in practice protection could be said to be sufficiently fundamental and durable in such circumstances.
Certificate under section 72 of the Nationality, Immigration and Asylum Act 2002
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Section 72 of the Nationality, Immigration and Asylum Act 2002 applies for the purposes of construction and application of Article 33(2) of the Refugee Convention as to exclusion from protection. Section 72(2) states as follows:
“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 –
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convicted in the United Kingdom of an offence, and
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sentenced to a period of imprisonment of at least two years.”
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Further to section 72(10), where a Tribunal hears an appeal against a Respondent’s certificate under subsection (2) above under section 82 of this Act, it “(a) must begin substantive deliberation on the appeal by considering the certificate, and (b) if in agreement that presumptions under (2) … apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in (9)(a)” which relates to an appeal on the grounds that to remove the appellant would breach the United Kingdom’s obligations under the Refugee Convention.
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In accordance with the Upper Tribunal decision in Essa (Revocation of protection status appeals) [2018] UKUT 244 (IAC), where section 72(10) applies, an appeal to the Tribunal must be dismissed even if the Refugee Convention grounds are made out.
Country Guidance
The parties are both agreed that the Country Guidance in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) is applicable to the present appeal and neither party seeks any departure from it. The key findings for the purposes of this appeal as summarised in the headnote, with additional cross-referencing to the original paragraphs numbers in the main body of the decision given in square brackets for...
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