MSM v The Secretary of State for the Home Department

A person who will work in Somalia’s media sector faces a real risk of persecution by Al-Shabaab for actual or imputed political opinion. The risk arises from membership of the media-sector group and is not confined to particular roles, organisations or regions.

Refugee status cannot be refused because the person could avoid that risk by changing occupation. Where the future conduct will express, or cause the imputation of, a Convention-protected political opinion, the focus is on what the person will actually do on return. The fact that the protected opinion is expressed through employment does not convert the claim into an unprotected right to practise a chosen profession.

The appellant, an anonymous Somali national, appealed against the refusal of his asylum claim. The First-tier Tribunal had dismissed the appeal on 18 March 2014, holding that he could reasonably return to teaching rather than work as a journalist.

Upper Tribunal Judge Dawson set that decision aside for legal error, while preserving findings that the appellant had not previously been targeted by Al-Shabaab. On remaking, the Tribunal found that he would probably obtain media-sector work involving research, writing or presentation if returned to Mogadishu.

The issues were whether such work would expose him to persecution for political opinion or treatment contrary to Articles 2 and 3 ECHR, and whether asylum could be refused because he could avoid the risk by changing career.

1. Appeal allowed. The Tribunal remade the decision and allowed the asylum appeal. The appellant would face a real risk of persecution for actual or imputed political opinion, and of treatment contrary to Articles 2 and 3 ECHR, if returned to Mogadishu.

2. The appellant would probably work in broadcasting and related media activity on return. Journalists and other media workers research, report and present material which expresses, or causes persecutors to impute, political opinions. The relevant endangered group includes all media-sector workers, not only journalists in a narrow sense.

3. The evidence established no sustainable distinction based on the worker’s precise role, the media organisation’s perceived alignment, or location within Somalia. Al-Shabaab posed the relevant risk. The evidence did not establish a real risk of Convention persecution by state agents.

4. Applying SSHD v Ahmed [1999] EWCA Civ 3003, HJ (Iran) v SSHD [2011] 1 AC 596 and the reasoning discussed in RT (Zimbabwe), the decisive inquiry was what the appellant would actually do on return. A person is not disentitled to protection because he could avoid persecution by changing conduct, even if that avoidance might be thought reasonable.

5. The proposed occupational change would suppress the expression of, or expose the appellant to imputation of, political opinion. Freedom of expression was engaged. The fact that journalism is the setting in which the political opinion is imputed was incidental; it did not permit refusal of refugee status as though the claim concerned only a right to pursue a chosen profession.

6. Country-information reports must be read in their full evidential context and without an overly legalistic or contractual construction. Where withdrawal of a concession is sought, the Tribunal must independently assess all relevant evidence, while taking account of its inquisitorial jurisdiction and fairness.

• Upper Tribunal (Immigration and Asylum Chamber): remade the decision and allowed the appellant’s asylum appeal.
• Upper Tribunal (Immigration and Asylum Chamber): an earlier error-of-law decision set aside the First-tier Tribunal’s determination, preserving specified factual findings and directing remaking.
• First-tier Tribunal: dismissed the appeal against the Secretary of State’s refusal of asylum on 18 March 2014.