Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2022-005652

First-tier Tribunal No: RP/50115/2021
IA/05197/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7 March 2025

Before

UPPER TRIBUNAL JUDGE RINTOUL
and
UPPER TRIBUNAL JUDGE MANDALIA

Between

IMS
(ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr C Dougan, Nelson Singleton Solicitors
For the Respondent: Ms R Arif, Senior Home Office Presenting Officer

Heard at Royal Courts of Justice (Belfast) on 19 November 2024
Decision and Reasons
As the underlying claim to this appeal concerns an appellant previously granted refugee status, pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant 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. Failure to comply with this order could amount to a contempt of court.
Introduction
1. The appellant is a national of Sudan. She arrived in the UK on 12 November 2014 and claimed asylum. In summary, she claimed to be at risk in Sudan as a member of the Berti Tribe and as a ‘non-Arab Darfuri.’ She was granted refugee status on 7 May 2015. On 1 November 2021, the respondent made a ‘cessation of refugee status’ decision, the effect of which is that the appellant no longer has refugee status and may be required to leave the UK.
2. The appellant’s appeal against that decision was dismissed by First-tier Tribunal (“FtT”) Judge Grimes (“the judge”) for reasons set out in a decision dated 5 October 2022. The appellant claims the decision of the FtT is vitiated by material errors of law. In summary, the appellant claims: (i) the judge failed to follow the approach to cessation in Article 1(C) of the Refugee Convention as set out in PS (cessation principles) [2021] UKUT 00283; and (ii) erroneously reversed the burden of proof.
3. Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Kopieczek on 27 March 2023. He said:
“2. Because the grounds of application to the Upper Tribunal incorporate by reference the initial grounds to the First-tier Tribunal I have also considered them. Those grounds take issue with Judge Grimes' assessment of the appellant’s account in relation to the Sudanese passport used to travel to Sudan.
3. This appeal concerns revocation of refugee status on the basis of Article 1C(1) of the Refugee Convention (voluntarily re-availing of the protection of the country of nationality). The decision in PS (cessation principles) Zimbabwe [2021] UKUT 00283 (IAC) is concerned with Article 1(C)(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 his country of nationality...".
4. It is not clear, therefore, how the error contended for in relation to the application of the guidance in PS could be made out.
5. It does seem to me, however, that the argument about the reversal of the burden of proof requires further consideration and the point is, therefore, arguable.
6. The argument raised in the grounds to which I refer in paragraph 2 above will have to overcome the detailed findings of fact made by Judge Grimes in which the appellant's credibility was plainly found significantly wanting.
7. However, because of the potential for overlap in the various aspects of the grounds I do not rule out airy of the grounds and all grounds may be argued.”
4. Before we turn to the parties’ submissions, it is useful for us to say a little more about the background to put the respondent’s decision and the decision of the FtT in context.

Background
5. On 24 February 2021, the respondent wrote to the appellant notifying her of the respondent’s intention to cease the refugee status granted to the appellant. The appellant had been encountered at Belfast International airport on 29 October 2019 and found to be in possession of a Sudanese passport issued to her. The respondent noted that in January 2016 the appellant had been issued with a Sudanese passport and between September 2016 and October 2019, the appellant had travelled to Sudan on at least two occasions and stayed in Sudan for significant periods of time. The appellant’s travel to Sudan, the respondent claimed, indicated that the appellant felt safe enough to return to Sudan without fear of persecution. The respondent rejected the appellant’s claim when she was encountered on 29 October 2019 that she had been given the Sudanese passport by her sister and that immigration officials in Sudan had stamped the passport in the absence of the appellant. The appellant was given an opportunity to address the respondent’s concerns.
6. On 10 March 2021, the appellant’s representatives made representations to the respondent. The appellant claimed she has never travelled to Sudan. She accepted that she had left the UK in 2016 and 2019 and claimed she had travelled to Egypt to visit her mother who was receiving medical treatment in Cairo. It was said that the appellant resided in Cairo in a rented flat with her mother. The appellant’s representatives went on to say:
“My Client instructs that her sister fraudulently obtained a Sudanese Passport in her name and had been using it. When my Client found out about this on her second trip to Egypt in 2019 she took the Sudanese Passport from her and returned home with it to Belfast. I attach letters from both my Client's sister and her mother confirming the situation.”
7. Two short letters (both written in English) were signed by the appellant’s mother and her sister, and both were provided to the respondent.
8. In April 2021, the respondent also notified the UNHCR of the intention to cease the appellant’s refugee status. A response was received from the UNHCR dated 15 October 2021 referring to their supervisory role. The UNHCR said:
“[The appellant’s] apparent possession and use of her national passport prima facie reverses the burden of proof to her rather than the HO. UNHCR notes that the HO has analysed the representations by [the Appellant] with a view to ascertain the motives and circumstances that led to [the appellant] being in possession of a national passport. UNHCR considers both the motives and circumstances critical when assessing whether Article 1 C(1 ) should be applied . Cases of this kind should be judged on their individual merits, with a robust consideration of the intent or motive of the refugee. It should be considered why the individual may have contacted the national authorities and whether she acted voluntarily or was constrained by circumstances beyond her control, amongst others. UNHCR notes that it is important that the HO thoroughly assess whether [the appellant] has voluntarily, intentionally and actually re-availed herself of the protection of Sudan.”
9. It was against that background and having considered the representations received that the respondent, on 1 November 2021, made the ‘cessation of refugee status’ decision.
10. The issues on appeal before the FtT were identified in the appellant’s skeleton argument dated 16 March 2022 as follows:
“3. (a) The matters which are agreed: -
That the Appellant is a Sudanese national.
(b) The matters which are required to be determined by the Tribunal:
Did the Appellant obtain a Sudanese Passport in her own name?
Has the Appellant returned to Sudan?”
The Hearing of the Appeal Before Us
11. Mr Dougan candidly and quite properly in our judgement, acknowledges the difficulties faced by the appellant in light of the credibility findings made by the judge. He submits the respondent had failed to take any steps to carry out checks as to the authenticity of the Sudanese passport found on the appellant and the appellant has always maintained that the passport was neither obtained nor used by her. He submits the judge erred because there was no evidence before the Tribunal that the Sudanese passport was an authentic one.
12. Mr Dougan submits that when considering ‘cessation of refugee status,’ the respondent must consider any extant country guidance and the potential risk the appellant would face upon return to Sudan as a ‘non-Arab Darfuri.’ The position remains as set out in AA (Non-Arab Darfuris, relocation) [2009] UKAIT 56, which confirms non-Arab Darfuris are at risk of persecution in Darfur and cannot reasonably be expected to relocate elsewhere in Sudan. The respondent must be able to point to a durable change in conditions in the country of nationality that results in the refugee having no genuine fear of persecution on their return. He submits the respondent is unable to point to any such change and there is now a war in Sudan. However, when pressed, Mr Dougan accepted that, subject to where the burden of proof rests, if the appellant has been able to obtain a genuine Sudanese passport with which she has been able to travel to and from Sudan, she cannot be said to have a well-founded fear of persecution in Sudan.
13. As far as the ‘burden of proof’ is concerned, Mr Dougan was unable to draw our attention to any authorities to support his claim that the judge erroneously reversed the burden of proof, or that undermine what was said by the UNHCR in the representations made to the respondent.
14. In reply, Mrs Arif submits the judge was right to say, relying upon what had been said by the UNHCR, that the ‘burden of proof is reversed’ in such a claim. The judge, Mrs Arif submits, carefully considered the claims made by the appellant and she was entitled to reject those claims for the reasons set out in the decision. The Sudanese passport is one that has a photograph of the appellant, her personal details, and a signature. There was no evidence relied upon by the appellant to establish that she would have been required to be in Sudan, or her personal presence was required, when that Sudanese passport was issued in 2016. There is, Mrs Arif submits, no error of law in the decision of the FtT and the appeal before us should be dismissed.
Decision
15. Where a person has been recognised as a refugee as set out in Article 1A of the Refugee Convention, that status can only be lost in accordance with Article 1C of the Convention. Article 1C provides that the 1951 Convention shall cease to apply to any person falling under the terms of Article 1(A) if:
“(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
…
(5) He can no longer, because the circumstances in connexion 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; 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;”
16. We reject the claim the judge failed to follow the approach to cessation in Article 1(C) of the Refugee Convention as set out in PS (cessation principles) [2021] UKUT 00283. Here, the cessation decision has not been taken on the grounds that there has been a durable change in conditions in Sudan so that the appellant no longer has genuine fear of persecution. PS (cessation principles) is concerned with Article 1C(5). The decision here has been taken under Article 1C(1) on the ground that the appellant has voluntarily re-availed herself of the protection of the country of her nationality. If, as Mr Dougan accepted before us, the appellant has been able to obtain a genuine Sudanese passport that she has been able to travel to and from Sudan with, she cannot be said to have a well-founded fear of persecution in Sudan.
17. The fact that the extant country guidance is that non-Arab Darfuris are at risk of persecution in Darfur and cannot reasonably be expected to relocate elsewhere in Sudan, is nothing to the point, if on the particular facts and findings made, the appellant is unable to establish that she is at risk upon return to Sudan. The effect of Article 1 C (1) is that the Refugee Convention (and the protections it provides) cease to apply to a refugee who has voluntarily re-availed. That means that Articles 32 and 33 no longer apply to her. The crucial issue is therefore whether it was open to the judge to conclude that the appellant has voluntarily re-availed herself of the protection of the country of her nationality.
18. To that end, the respondent had outlined a prima facie case for the cessation of refugee status, when, on 24 February 2021 the respondent wrote to the appellant notifying her of the respondent’s intention to cease the refugee status. The respondent noted the appellant had been encountered at Belfast International airport on 29 October 2019 and was found to be in possession of a Sudanese passport issued to the appellant on 26 January 2016, within a few months of the appellant having been granted refugee status and issued with a travel document. The appellant was quite properly invited to provide an explanation before a decision was made by the respondent.
19. The judge referred to the relevant legal framework at paragraph [6] of her decision. She noted, at [7]:
“According to the letter from the UNHCR dated 15 October 2021, the appellant's apparent possession of and use of her national passport prima facie reverses the burden of proof to her rather than the Home Office. The UNHCR letter goes on to state that, in UNHCR's view, the burden of proof has been reversed to [the appellant] and the onus is on her to explain the circumstances of her actions and how she has not re-availed herself of the protection of her country of origin, Sudan.”
20. The judge set out the background to the appeal at paragraphs [8] to [11] and referred to the claims made by the appellant and the respondent’s reasons for the decision. The judge referred to the appellant’s travel to and from Sudan as far as that was ascertainable from the legible entries in the Sudanese passport, and the Convention Travel Document issued to the appellant. The judge’s finding and conclusions are set out at paragraphs [12] to [39] of the decision. The judge again noted at the outset:
“12. As set out in the UNHCR letter, the appellant's apparent possession of and use of her national passport prima facie reverses the burden of proof to her rather than the Home Office….”
21. The judge went on to refer to the relevant factors identified by the UNHCR and then addressed at some length the evidence before the Tribunal from the appellant, together with the written evidence provided by the appellant’s mother and sister. The judge said:
“17. I have considered the evidence before me as to the appellant's possession of a Sudanese passport and travel to Sudan.”
22. Having carefully considered the evidence before the Tribunal the judge said:
“26. There are a number of significant contradictions within the evidence which undermines the appellant‘s claim in relation to the Sudanese passport and travel to Sudan.”

23. The judge considered the appellant’s claim that the Sudanese passport had been obtained by her sister without the appellant’s knowledge:
“The passport and signature in the Sudanese passport is similar or identical to the passport signature in the appellant's Convention travel document. I asked the appellant how her sister got the photograph and she said that she had photographs in Sudan before she came to the UK. I find that this does not adequately explain the apparent similarity between the photographs and the signature on the Sudanese passport and the Convention travel document.”
24. The judge referred extensively to the contradictions and anomalies in the evidence and summarised her conclusions at paragraph [37]:
“I find that there are a significant number of discrepancies within the appellant's account and between the appellant' s account and the evidence of her mother and sister and the other evidence put forward. There are a number of pieces of evidence identified above which could reasonably have been provided which have not. I find that the appellant's credibility has been significantly damaged. I reject the appellant's claim that her sister obtained a Sudanese passport without her knowledge or consent. I reject the appellant's claim that her sister travelled in and out of Sudan using the appellant's passport. I find that the appellant travelled to Sudan using that passport as indicated by the stamps on that passport.”
25. Although it is correct that the respondent did not make any enquiries to determine whether the Sudanese passport was fraudulently obtained by the appellant’s sister, the respondent was under no obligation to do so. The appellant provided an explanation as to how the passport had been obtained, which was supported by evidence from the appellant’s sister. The respondent rejected the explanation. In the appellant's skeleton argument identifying the issues for the FtT to determine, the issue was identified to be: “Did the Appellant obtain a Sudanese Passport in her own name?”. That, quite properly was the issue determined by the judge.
26. We reject the claim made by Mr Dougan that in reaching her decision, the judge erroneously ‘reversed the burden of proof’. The judge took her lead from the representations made by the UNHCR. It was the UNHCR that stated the appellant's apparent possession of, and use of her national passport establishes a prima facie that reverses the burden of proof. Mr Dougan was unable to take us to any authority to support his claim that the judge in these circumstances erroneously reversed the burden of proof.
27. We are quite satisfied that the judge adopted the correct approach to the burden of proof. The respondent has established a prima facie case that called for an explanation from the appellant. As is apparent from the extracts of the decision that we have cited above the judge carefully considered the explanation relied upon by the appellant and rejected it outright for reasons that in our judgement are clearly rooted in the evidence. The findings and conclusions reached by the judge regarding the claims made by the appellant are neither unreasonable nor irrational. The particular findings made are not challenged.
28. It follows that in our judgement there is no merit to any of the grounds of appeal advanced by the appellant and we dismiss the appeal.
Notice of Decision
29. The appeal to the Upper Tribunal is dismissed.
30. The decision of First-tier Tribunal Judge Grimes stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 February 2025