Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: rp/00077/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 November 2017
On 17 November 2017

Before

UPPER TRIBUNAL JUDGE blum

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

KN
(anonymity direction MADE)

Respondent

Representation:

For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Ms S Jegarajah, Counsel, instructed on a Direct Access Basis

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department (Appellant) against a decision of Judge of the First-tier Tribunal Henderson (the judge), promulgated on 28 July 2017. The appeal before the judge was against two separate decisions, a Cessation of Refugee Status (CRS) decision made on 9 May 2016, and a decision to refuse the human rights claim of KN (the Respondent) dated 7 June 2016, although served on 10 June 2016 (in the same decision the Appellant also decided to deport the Respondent pursuant to the automatic deport provisions of the UK Borders Act 2007, the trigger offence being a conviction of Conspiracy to Rob, the Respondent having received a custodial sentence of 4.5 years).

2. The judge dismissed the Respondent's human rights claim (which was based on his private life, the Respondent having resided in the UK since the age of 9, and his family life, the Respondent having a genuine and subsisting relationship with his British national partner and their two British national children born in 2002 and 2011). There has been no cross-appeal against the dismissal of the human rights appeal. The judge found that the Respondent rebutted a certificate issued under section 72 of the Nationality, Immigration and Asylum Act 2002 and that he did not pose a danger to the community. The Appellant has not sought to appeal this aspect of the judge's decision.

3. The judge allowed the appeal against the CRS decision, concluding that it breached the UK's obligations under the 1951 Refugee Convention. The Appellant contends that, in allowing the appeal, the judge fell into legal error.

Relevant background

4. The Respondent is a national of the DRC (Democratic Republic of Congo), born in 1981. According to a letter from the United Nations High Commissioner for Refugees "UNHCR" dated 12 February 2015, and the CRS decision, the Appellant arrived in the UK in February 1991 with his siblings to join their parents. The Appellant's father had been a member of former President Mobuto's ruling party, but resigned and joined an opposition political party (the UDPS). He was arrested and tortured but managed to flee the country and made his way to the UK. An application for entry clearance was made by the Appellant and his siblings and this was granted in December 1990. The Appellant's father was granted indefinite leave to remain (ILR) on the 29 November 1994, and the Appellant was also granted ILR and recognised as a refugee. The UNHCR letter states that the Appellant was granted the same status in line with his father on the same date. Although the CRS decision states that the Appellant's claim for asylum was based on his imputed political opinion there is no documentary evidence in support of this assertion. The grounds of appeal to the Upper Tribunal specifically state that the Respondent was not granted refugee status in his own right, but as a dependent of his father. There was no submission by the Presenting Officer at the error of law hearing that the assertion in the grounds was in any way inaccurate.

5. The CRS decision noted that, although a member of the UDPS, the Respondent's father's activities were geared towards ex-President Mobutu's political party (the MPR). President Mobutu's party lost power in May 1997. Although the UDPS continued to be an opposition party there was no evidence to suggest that the Respondent would be persecuted due to his father's involvement with the UDPS prior to him leaving the DRC. The Appellant considered a Country Information and Guidance (CIG) document and concluded that the Respondent would not face any risk of harm as a person returning to the DRC after a period of absence, or on the basis of his criminal convictions. The Appellant concluded that there had been significant changes in the DRC since the Respondent was granted refugee status such that he no longer held a well-founded fear of persecution. The Appellant therefore concluded that Article 1C(5) of the 1951 Refugee Convention and paragraph 339A(v) of the immigration rules applied and decided to revoke the Respondent's refugee status.

The First-tier Tribunal decision

6. The judge does not appear to have been impressed by the Presenting Officer appearing before him. The Presenting Officer made no reference to any of the specific paragraphs of the CRS decision and made no substantive submissions in respect of the Home Office's policy on revocation of refugee status. At [78] the judge referred to paragraph 3.7 of the Home Office's policy, which indicates that caseworkers must take the UNHCR's comments into account as part of their decision on revocation. The judge said there was no evidence in the CRS that this had been done. The judge proceeded to note that the Respondent was issued refugee status as the dependent of his father, that he had never been interviewed to assess his risk on return, and that he had no idea of what risk there may be to him. The judge considered the UNHCR letter which indicated that opposition politicians may still face violence and harassment and that there remained a serious problem of politically motivated human rights abuses in the west of the DRC. The judge noted again that the CRS decision made no reference to the UNHCR letter and concluded that the Respondent had not considered the UNHCR's comments, which was contrary to her own policy. Having regard to the UNHCR cessation guidelines, which recommended that states should carefully assess the fundamental character of changes in the country of nationality, the judge concluded that there was no evidence that the Appellant had assessed the Respondent's particular circumstances and the risk to him upon return in reaching her decision. The judge consequently found that the Appellant had not discharged the burden of proof incumbent on her to revoke the Respondent's refugee status.

The grounds of appeal, the grant of permission, and the 'error of law' hearing

7. The grounds contended that the judge made a material misdirection in law by finding that the Respondent was entitled to refugee status without identifying why he had a well-founded fear of persecution on return. The grounds specifically noted that the Respondent was not granted refugee status in his own right, but as a dependent of his father. Given that the Respondent did not claim to hold any political opinion in opposition to the current regime, and was unaware of why he would be at risk on return, it was submitted that the judge was not entitled to allow the appeal because the Respondent did not have a well-founded fear of persecution in the DRC. The failure by the judge to identify why the Respondent had a well-founded fear of persecution was a material error of law. The renewed grounds additionally contend that the CRS decision confirmed that an approach was made to the UNHCR and that paragraph 4 of the decision referred to all representations having been carefully considered.

8. Prior to the commencement of the hearing I enquired whether representatives were aware of the Court of Appeal decision in SSHD v Mosira [2017] EWCA Civ 407 (Mosira). Mr Melvin was aware of the decision and had brought a copy with him. As Ms Jegarajah was not aware of the decision I gave her copy and put the appeal back in the list to enable her to consider it.

9. At the start of the hearing I gave Mr Melvin an opportunity to again read Mosira. Neither party requested any further time or an adjournment of the hearing. There followed a discussion of the Court of Appeal decision. Mr Melvin did not make any specific submissions in light of the Court of Appeal authority. I indicated my preliminary view that the judge materially erred in law by allowing the appeal against the Secretary of State's decision to revoke his protection status because she had not fully considered the position of the UNHCR, which was contrary to her own policy. Ms Jegarajah made further submissions noting that there had been no challenge to the judge's section 72 decision and that, while there had been a change in government in the DRC, the UDPS was still in opposition and its members still targeted. She submitted that the judge was entitled to conclude that the Appellant had not discharged the burden of proof.

Discussion

10. The CRS decision was made on the basis of Article 1C(5) of the 1951 Refugee Convention and paragraph 339A(v) of the immigration rules.

11. Article 1C provides, in relevant part:
This 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 connexion 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 ?
12. Paragraph 339A(v) of the immigration rules reflects Article 1C of the Refugee Convention and makes provision for the revocation of a grant of asylum. It applies when a person granted asylum:
(v) ? 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.
13. The Respondent's right of appeal arose under s.82(1)(c) of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014) because the Appellant decided to revoke his protection status. The Respondent appealed on the ground, inter alia, that the decision to revoke his protection status breaches the United Kingdom's obligations under the Refugee Convention (s.84(3)(a)).

14. The judge could therefore only allow an appeal against the revocation of the Respondent's protection status on the basis that the decision breached the United Kingdom's obligations under the Refugee Convention. The judge's decision however, at [78] to [80], appears to be based on the Appellant's failure to take into account the UNHCR's comments contained in their letter dated 12 February 2015, which was contrary to the Home Office's policy on revocation of refugee status (paragraph 3.7), and that the 'Home Office Guidance' did not carry out the recommendation contained in the UNHCR's Cessation Guidelines.

15. It is clear to me that the judge allowed the appeal because he believed relevant guidance and policy had not been properly applied. Whether or not the judge's observations were justified, he did not identify how the CRS decision breached the U.K.'s obligations under the Refugee Convention. Article 1C makes no provision for the manner in which any assessment under Article 1C(5) is carried out. It does not necessarily follow that the possibility that the Appellant may not have followed her own policy, or the UNHCR Guidelines, would lead to a breach of the U.K.'s obligations under the Refugee Convention. In order to reach this conclusion, the judge would need to identify the specific Articles of the Refugee Convention that are said to be breached, and to explain why there has been a breach. The failure to relate any failure to follow applicable policy or guidance to the Articles of the Refugee Convention renders his decision unsustainable.

16. Having identified a material error of law, and in light of the submissions made by the parties, I proceed to consider whether the CRS decision does breach the U.K.'s obligations under the Refugee Convention.

17. The burden of proving that Article 1C(5) of the Refugee Convention applies rests on the Secretary of State (RD (Cessation - burden of proof - procedure) Algeria [2007] UKAIT 00066). She must demonstrate that the Respondent 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 DRC. The Appellant must therefore demonstrate the circumstances 'in connection with which' the Respondent was 'recognised as a refugee'. There was no evidence produced to the judge that the Respondent was recognised as a refugee on the basis that he would be the subject of an imputed political opinion. Given that the Respondent was only 9 years old when he left the DRC (entirely lawfully, on an application of entry clearance), it is highly unlikely that the DRC authorities would have imputed any political opinion to him, or that the British authorities would have reasonably considered that the Respondent was at real risk of being the subject of an imputed political opinion. It is much more likely that the Respondent was granted refugee status because his parents had been granted refugee status, which would have been consistent with the Secretary of State's policy at the time. This appears to have been the view of the judge who stated, at [79] that the Appellant's refugee status "was as the dependent of his father." The grounds of appeal settled by the Appellant state that the Respondent was not granted refugee status in his own right, and Mr Melvin did not seek to go behind this assertion. The Appellant has consequently not discharged the burden of proving that the Respondent was recognised as a refugee on the basis that he would be the subject of an imputed political opinion. I find he was not recognised as a refugee in his own right but was granted refugee status because his parents were recognised as refugees.

18. In Mosira the Court of Appeal considered the case of a Zimbabwean national who entered the UK aged 17 in 2004 pursuant to a 2003 family reunion policy in order to join his mother who had previously been granted refugee status purely because of the lack of medical facilities available in Zimbabwe to treat her medical condition. Under the terms of the 2003 policy Mr Mosira was himself granted refugee status by the Secretary of State. Mr Mosira went on to commit serious criminal offences and received concurrent terms of imprisonment for 3 years. He was therefore subject to the automatic deportation provisions. The Secretary of State gave notice of cessation of his refugee status pursuant to Article 1C(5) and paragraph 339A(v) of the immigration rules. She contended that the circumstances which led to the grant of asylum status to Mr Mosira had fundamentally and durably changed because of the improvements in the political situation in Zimbabwe.

19. Mr Mosira had a right of appeal against the decision that the automatic deport provisions applied to him. An appeal to the First-tier Tribunal resulted in the matter being reconsidered by the Upper Tribunal. In its August 2015 decision, the Upper Tribunal held that the Secretary of State was not entitled to proceed by way of cessation of Mr Mosira's refugee status because the changes in circumstances in Zimbabwe had nothing to do with the original basis on which he was granted refugee status, which was as a child family member of a person who had been granted refugee status. The Upper Tribunal found that Mr Mosira had rebutted the presumption in s.72 of the 2002 Act and, as he was a person with refugee status for the purposes of the Refugee Convention, his removal to Zimbabwe could not be justified according to the test and laid out in Article 33(2) of the Convention (the prohibition on refoulment).

20. The Court of Appeal noted that Mr Mosira did not appear to have been granted refugee status under paragraph 334 of the immigration rules, expressed concern as to whether paragraph 339A applied to him at all, and noted that the Secretary of State had consistently advanced her case on the basis that she was entitled to decide to cease to recognise Mr Mosira as a refugee by virtue of the application of article 1C(5) of the Convention and paragraph 339A(v) of the immigration rules.

21. Although the Secretary of State, at the hearing of her appeal in the Court of Appeal, sought to argue that the Upper Tribunal erred in assuming Mr Mosira was to be treated as a refugee in the absence of a lawful cessation of his refugee status even in circumstances where there was no current risk of persecution, this argument was advanced very late in the day and it was considered unfair to allow the Secretary of State to rely on it. Although I gave the Presenting Officer a further opportunity to consider the judgment in Mosira there was no application for an adjournment to consider whether to advance her case on any other basis.

22. At paragraph 49 of his judgment Lord Justice Sales stated,

Mr Mosira was not granted refugee status by reason of the threat of ill-treatment by the authorities in Zimbabwe. Nor was his mother. Therefore the change in the threat posed by the authorities in Zimbabwe has no bearing upon "the circumstances in connection with which [Mr Mosira] has been recognised as a refugee". He was granted refugee status under the 2003 family reunion policy, to join someone in the United Kingdom who had (and continues to have) refugee status here: those were the "circumstances in connection with which he [was] recognised as a refugee". It cannot be said that the change in the threat posed by the authorities in Zimbabwe means that those "circumstances" have ceased to exist.

23. As in the case of Mosira, the Respondent was not granted refugee status by reason of the threat of ill-treatment by the authorities in the DRC. Although his father was granted refugee status on this basis, any change in the DRC still has no bearing on the circumstances in connection with which the Respondent was recognised as a refugee.

24. While there are differences between the position of Mr Mosira and the Respondent, I do not consider that the reasoning of the Court of Appeal, when applied to the facts, can lead to a conclusion that the circumstances in which he came to be recognised as a refugee have ceased to exist. Although Mr Mosira was granted leave to enter the UK pursuant to a 2003 family reunion policy, and was granted refugee status under the terms of that policy, there is nothing in the evidence before me to indicate that the grant of entry clearance to the Respondent in 1992 to enable him to join his parents in the UK was, in principle, any different. Although Mr Mosira's right of appeal did not stem from the cessation decision, the grounds of appeal under the earlier version of s.84(1) of the 2002 Act are not materially different (the earlier grounds stated that the 'removal of the Appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention?').

25. Given that the political changes in the DRC have not altered the basis upon which the Respondent was granted refugee status, I am not persuaded that the circumstances in connection with which he was recognised as a refugee have ceased to exist I therefore find that the CRS decision did breach the U.K.'s obligations under Article 1C(5) of the Refugee Convention.

Notice of Decision

The decision of the First-tier Tribunal did contain a material error of law.
The matter was remade, and the appeal allowed on the basis that the Secretary of State's decision to revoke KN's refugee status breached the UK's obligations under the Refugee Convention.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Respondent in this appeal is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

16 November 2017

Signed Date

Upper Tribunal Judge Blum