Secretary of State for the Home Department v MSM (Somalia) & Anor

An asylum claimant cannot be denied refugee status merely because political conviction was not the determinative reason for pursuing a profession. An unchallenged finding that the claimant’s intended journalistic work was at least partly driven by political conviction established a risk of persecution for actual political opinion.

The court therefore dismissed the appeal despite the Upper Tribunal’s unsatisfactory conflation of actual and imputed political opinion. In obiter, the court considered that Directive 2004/83/EC creates a single test for refugee status and gives little scope for requiring an applicant to take avoiding action where a persecutor imputes a protected characteristic, apart from internal protection under Article 8.

MSM, a Somali national, had worked as a teacher and then as a radio journalist. His account that Al-Shabaab had threatened him before he left Somalia was rejected, but it was found that he had worked as a journalist and was likely to return to media work.

The First-tier Tribunal dismissed his asylum appeal, holding that he could reasonably return to teaching and thereby avoid any risk associated with journalism. The Upper Tribunal set that decision aside and, in its remade decision, allowed the appeal: [2015] UKUT 00413 (IAC). It found that MSM’s intended journalism would be at least partly driven by political conviction and that media workers faced a real risk of persecution for actual and/or imputed political opinion.

The Secretary of State appealed. The central issue was whether the risk arose from actual political opinion, or only an imputed opinion which MSM could avoid by changing occupation.

1. Appeal dismissed. The Upper Tribunal had imperfectly elided actual and imputed political opinion. That defect did not affect the outcome. Its unchallenged finding that MSM’s intended journalistic career was at least partly driven by political conviction was a finding of actual political opinion.

2. The Secretary of State’s submission that political conviction had to be the determinative reason for MSM’s choice of career was rejected. The importance of a protected political right to an individual applicant is not the relevant inquiry. The Upper Tribunal had found both that MSM would pursue journalism and that he would face persecution for a Convention reason. He could not be refused refugee status because he might instead return to teaching.

3. Beatson LJ held that this conclusion disposed of the appeal. Tomlinson LJ and Moore-Bick LJ agreed. The court did not disturb the preserved finding that MSM had fabricated his account of previous threats; the relevant risk was the prospective risk arising from his likely return to media work.

4. Obiter, Beatson LJ considered the broader question concerning persecution for an imputed political opinion. The language of the Directive 2004/83/EC requires inquiry into whether there is a well-founded fear of persecution and whether its reason is a protected characteristic. Article 10(2) protects a characteristic attributed by the persecutor. Apart from internal protection under Article 8, the Directive contains no separate avoiding-action test for an applicant who does not actually possess the characteristic.

5. On that wider issue, the court was inclined to accept that the inquiry concerns what the applicant will do on return, rather than what he could do to avoid the risk. The seriousness of the threatened harm remains relevant under Article 9. The court expressly refrained from a concluded, binding ruling because the issue did not arise for decision.

• Court of Appeal (Civil Division) — the Secretary of State’s appeal was dismissed: [2016] EWCA Civ 715.
• Upper Tribunal (Immigration and Asylum Chamber) — allowed MSM’s appeal after remaking the decision: [2015] UKUT 00413 (IAC).
• First-tier Tribunal — dismissed MSM’s asylum appeal in a determination promulgated on 18 March 2014. Its decision was set aside for legal error by the Upper Tribunal, with specified factual findings preserved.