Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00063/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 October 2016
On 20 February 2017

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

and

MUKHTAR SALEH
Claimant

Representation:
For the Respondent: Mr I Jarvis Presenting Officer
For the Claimant Mr D Neale, instructed by Duncan Lewis & Co. (Harrow),

DECISION AND REASONS
1. The Secretary of State (to whom I refer as the respondent as she was below) appeals with permission against the decision of First-tier Tribunal Judge Hodgkinson promulgated on 1 August 2016 in which he allowed the appeal of M S ("the claimant") against the decision of the Secretary of State made on 13 May 2016 to revoke protection status and to refuse a human rights claim.
2. For reasons which will become clear, it is first necessary to set out in some detail the basis on which the claimant acquired leave to remain in the United Kingdom, and the sequence of events which lead to the respondent's decision.
3. The claimant was born on 7 July 1991 in Hamar Weyne, Mogadishu, Somalia. In 2006 his father was killed during fighting in Mogadishu; his mother was kidnapped but escaped and travelled to the United Kingdom where she was recognised as a refugee on 12 December 2006. The claimant was able to escape and travel to Ethiopia with his stepfather and family and thence to the United Kingdom, arriving on 13 February 2009. He was granted entry clearance as the child of a refugee in line with his mother until 12 December 2011.
4. On 8 February 2010 the claimant was convicted of two counts of possessing class a controlled drugs and on 29 June 2010 of the possession with intent to supply drugs. He was on 13 July 2010 sentenced to 3 years' imprisonment. In the meantime, the respondent served upon him a Liability to Deportation Letter on 20 April 2010. After representations were made, the respondent decided not to deport the claimant and on 23 May 2012, shooting with a warning letter notifying him that any future adverse conduct would cause consideration of his automatic deportation. He was later granted Discretionary Leave to Remain. On 16 December 2014 he was convicted of possession with intent to supply class a drug he was sentenced to 2 years and one month's imprisonment.
5. On account of that most recent conviction, on 30 March 2015 the claimant was served with the letter notifying him of his liability to the automatic deportation. Further, on 20 October 2015, the claimant was served with a notice of intention to cease his refugee status and on 6 November 2015 UNHCR was notified of that intention by letter.
6. On 1 December 2015, UNHCR responded to the respondent's proposed cessation of refugee status, noting that the decision to invoke the cessation clauses appeared to have been triggered by his criminal convictions which it considered ran the risk of improperly modifying the cessation clauses by adding the provisions of Article 33 (2) of the Refugee Convention, it being the view of UNHCR that this risk flows also from article 14 (4) of the Qualification Directive 2004/83/EC.
7. On 13 May 2016 the respondent made a deportation order against the claimant and on 14 May 2016 decided to revoke protection status and to refuse a human rights claim. In doing so, the respondent noted UNHCR's comments, but concluded that, in the light of MOJ & Ors (return to Mogadishu) Somalia CG [2014] UKUT 00442, there had been such a change in circumstances in Mogadishu that the claimant could safely return there. It was, in any event, her view that the claimant was excluded from Refugee protection by section 72 of the Nationality, Immigration and Asylum Act 2002 and from humanitarian protection by the effect of paragraph 339D of the Immigration Rules.
8. The respondent also considered that the claimant's deportation would not be in breach of articles 3 or 8 of the Human Rights Convention, having had due regard to the relevant provisions of the Immigration Rules relevant to deportation.
9. The claimant's case is, put briefly, that he is at risk on return to Somalia, being from a minority clan (the Ashraf), and having no support or family there. He also fears the Al Shabaab.
10. The appeal came before the First-tier Tribunal on 20 July 2016. Following submissions from the parties, the judge decided that he would consider as a preliminary issue the lawfulness of invoking the cessation clauses, but only after hearing the appeal in full [21], [41].
11. The judge considered the UNHCR letter of 1 December 2015 in detail [44], as well as article 33 of the Refugee Convention and article 14 (4) of the Qualification Directive [45]. He found
(i) that UNHCR's view, to which respect was due, was that the respondent's decision was unlawful for the reasons cited by UNHCR [47];

(ii) that it was clear that the respondent's decision to cease the claimant's refugee status had been triggered by the respondent's wish for logical reasons to remove the claimant, and that "before she can do so" she has to cease such status [48];

(iii) that the burden on the respondent to justify cessation had not been met [49]. Such that "it has not been established that the claimant's refugee status can be revoked, irrespective of whether it is or is not, now safe for the claimant to return to Mogadishu" [49]
12. On that basis, the judge allowed the appeal [50], although acknowledging that it was likely that permission to appeal would be sought.
13. The respondent sought permission to appeal on the grounds that the judge had erred:
(i) In failing to give adequate reasons for his conclusion at [49] that the respondent had failed to satisfy the burden on her to justify revocation;

(ii) In failing to resolve the issue of risk of return in the light of MOJ & Ors; and,

(iii) In allowing the appeal although of the view that [50] that there may be an error of law in his decision.
14. On 23 August 2016, Designated Judge Murray granted permission on all grounds.
15. I heard submissions from both representatives at the hearing on 10 October 2016 at which point it became clear that it would be appropriate for both to provide additional written submissions, given the complexity of the issues involved. Time for those to be provided was also extended, at the request of the parties.
The Law
Article 1 of the Refugee Convention defines the term 'refugee'.
A. For the purposes of the present Convention, the term 'refugee' shall apply to any person who:
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(2) ? 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
C: This Convention shall cease to apply to any person falling under the terms of section A if:
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(5) He can no longer, because the circumstances in connection with which he 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 ...
Article 32 of the Refugee Convention provides: 'Expulsion'.
1. A Contracting State shall not expel a refugee lawfully on their territory save on the grounds of national security or public order
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law ?
Article 33 entitled, 'Prohibition of expulsion or return ('refoulement') provides: -
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.
The Refugee Convention has been incorporated into domestic law for some but not all purposes. It does not have the force of statute nor a status superior to statutory instruments - see EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630 at [58] - [59].
Section 72 of the 2002 Act, as amended by the United Kingdom Borders Act 2007 provides: -
72. Serious criminal
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
(2) 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.
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(6) 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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(11) For the purposes of this section-
(a) 'the Refugee Convention' means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol
16. In RY (Sri Lanka) v SSHD [2016] EWCA Civ 81, the Court of Appeal expressly rejected [33] the proposition that, having recognised the claimant as a refugee, it was not open to the respondent to deport him without taking steps to cease his refugee status, it being noted [34] that article 33.2 of the Refugee Convention will not of itself prevent refoulement in the specified circumstances.
17. The right of appeal to the First-tier Tribunal is set out in section 82 (1) of the 2002 Act which provides:

82. A person ("P") may appeal to the Tribunal where-
(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
(c) the Secretary of State has decided to revoke P's protection status.
(2) For the purposes of this Part-
(a) a "protection claim"is a claim made by a person ("P") that removal of P from the United Kingdom-
(i) would breach the United Kingdom's obligations under the Refugee Convention, or
(ii) would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(b) P's protection claim is refused if the Secretary of State makes one or more of the following decisions-
(i) that removal of P from the United Kingdom would not breach the United Kingdom's obligations under the Refugee Convention;
(ii) that removal of P from the United Kingdom would not breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

(c) a person has "protection status" if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection;

(d) "humanitarian protection"is to be construed in accordance with the immigration rules;

(e) "refugee"has the same meaning as in the Refugee Convention.

(3) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.

18. The permissible grounds of appeal are set out in section 84 of the 2002 Act which provides, so far as is relevant:
84 Grounds of appeal
(1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought on one or more of the following grounds-
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(3) An appeal under section 82(1)(c) (revocation of protection status) must be brought on one or more of the following grounds-
(a) that the decision to revoke the claimant's protection status breaches the United Kingdom's obligations under the Refugee Convention;
(b) that the decision to revoke the claimant's protection status breaches the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection.

Discussion
19. At its core, the First-tier Tribunal's decision is founded on three propositions:
(1) that the claimant's refugee status must be revoked before he can be deported [48];
(2) that the burden is on the respondent to justify cessation [49]; and,
(3) the only basis on which the respondent had sought to counter UNHCR's view that the decision was unlawful, was not accurate.
20. The available grounds of challenge are those set out in section 84; that the decision was not in accordance with the law is no longer an express ground of appeal. It is, however, following Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC) open to a tribunal to conclude that a decision was not in accordance with the law. On that basis, Mr Neale submits for the claimant that the judge's decision in this case was correct as there was jurisdiction to find a decision not in accordance with the law and that the decision to proceed with cessation was not lawful which includes not in accordance with the Immigration Rules (or alternatively, a breach of obligations under the Refugee Convention).
21. It is the claimant's case that the immigration decision in this case was a decision to revoke status, and that in the absence of authority on the circumstances on which article 1C (5) may be invoked, he was entitled to give weight to the view of the UNHCR on the proper interpretation of the Convention.
22. Mr Neale's case that there was an error of law is predicated on there being procedural guarantees within the Refugee Convention and that there are definable refugee convention standards (16). It is also predicated on the assumption that there are limits on when a state can look at cessation but there is no
23. As is evident from RY (Sri Lanka) it is not necessary for the respondent to invoke the cessation clause prior to deporting the claimant. It is equally established that it is for the respondent to demonstrate that a relevant cessation clause applies.
24. The challenge to the invocation of the cessation clause here is a classic public law challenge, and indeed Mr Neale's defence of the decision is on the basis that the judge was entitled to find that the respondent had breached implied
25. The difficulty with this submission is that the procedural obligations under the convention are not identified either by the claimant, or UNHCR. There are no obvious procedural requirements set out in the Convention. There is, in reality, nothing to suggest that any procedural protections exist over and above those in any contracting state. Here, the claimant was given notice of the proposed invocation of the cessation clause, as was UNHCR. Both were entitled to make submissions, and in the circumstances it cannot properly be argued that there were any procedural flaws.
26. The thrust of the challenge is, in effect, the allegation that the decision to invoke the process was triggered by the claimant's conviction. Both the judge and the claimant misconstrue what UNHCR stated on this issue. As the respondent submits, in its letter of 6 November 2015 (quoted by the judge at [44]) the UNHCR states that
"the approach whereby a criminals' conviction is used as a trigger for an individual consideration of the cessation clause, it runs the risk of introducing substantive modifications to the cessation clauses by adding the provisions of article 33 (2) as a basis for the consideration of the cessation of refugee status."
27. Neither this, nor the following paragraph which refers to a potential conflation any basis is any proper basis for the submission that it is UNHCR's view that what occurred her was unlawful. Further, and in any event, as Mr Jarvis submits, the letter predates the decision, and could not be said to be a comment on it.
28. It therefore follow's that the judge misunderstood the nature of UNHCR's letter and wrongly concluded that it took a view on the lawfulness of the decision. In any event, the issue of lawfulness was one for the judge to determine according to domestic law, not UNHCR. UNHCR's views are at best an opinion and nothing more. It does not have the authority to make binding pronouncements as to how the Convention is to be interpreted.
29. There is, thus, no proper reasoning to support the judge's conclusion that the decision under appeal was not lawful. Further, and in any event, it cannot be argued that the respondent acted irrationally or otherwise unlawfully in seeking to invoke the cessation clause. It was open to her to do so, and her decision took into account the view of the claimant and UNHCR. There is a merits-based right of appeal against that decision. There is, in reality, no basis on which it could be argued that there was in this case an abuse of power. Still less can it be argued that the respondent has not complied with obligations under the Refugee Convention, the claimant failing to identify any which are or could be breached by this decision, whether the process was triggered by the conviction or otherwise.
30. Accordingly, I am satisfied that the decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
31. Given that I have set aside the decision and given that the First-tier Tribunal made no relevant findings of fact or law, I remit the appeal to the First-tier Tribunal for a fresh decision on all material issues.

SUMMARY OF CONCLUSIONS

1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. I remit the appeal to the First-tier Tribunal for it to make a fresh decision on all issues.

Signed Date: 17 February 2017

Upper Tribunal Judge Rintoul