In the recent case of Secretary of State for the Home Department v MS (Somalia) [2019] EWCA Civ 1345, the Court of Appeal has decided that the Home Office can terminate refugee status when there exists change of circumstances in the refugee’s country of origin.
The Respondent (MS) in the matter is a national of Somalia who had been granted asylum in the UK. MS had been involved in criminal activities and due to his convictions, the decision to deport him to Somalia was issued by the Home Office.
It was accepted that even though MS will still face persecution upon his return to Somalia but concluded that Mogadishu was a safe place for MS to relocate and not face persecution.
The First tier Tribunal and the Upper Tribunal took the view that refugee status could only be ended if there was a change in circumstances meaning that the risk of persecution no longer existed. In doing so they were following paragraph 17 of the relevant UNHCR guidelines:
The 1951 Convention does not preclude cessation declarations for distinct sub-groups of a general refugee population from a specific country, for instance, for refugees fleeing a particular regime but not for those fleeing after that regime was deposed. In contrast, changes in the refugee’s country of origin affecting only part of the territory should not, in principle, lead to cessation of refugee status. Refugee status can only come to an end if the basis for persecution is removed without the precondition that the refugee has to return to specific safe parts of the country in order to be free from persecution [emphasis added].
This decision to contradict with the UNHCR guidelines is rare and seems to be built on a strongly felt disagreement. Lord Justice Hamblen disagreed and took the approach of “mirror image” in deciding if it was lawful to make a cessation decision. He said that the First tier Tribunal should consider the same issues as if it were considering an initial refusal of refugee status. At paragraph 47 of the judgement he states:
In my judgment, this Court should follow the mirror image approach endorsed in MA (Somalia), if and in so far as it is not bound so to do. It should do so for the reasons set out in MA (Somalia) and, in particular, because it reflects the language of Article 1C(5) of the Convention and Article 11 of the Qualification Directive, which link cessation with the continued existence of the circumstances which led to the recognition of refugee status. It is also consistent with the approach of the CJEU in Abdulla.
Indeed, the decision comes as a harsh one in which MS will have to now start again at the Firs tier Tribunal. As the concept of internal relocation doesn’t appeal in the Refugee convention, another option could have been to opt for a better interpretation of the cessation clause, so it applies in cases where the fear of persecution is no longer there.
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