RY (Sri Lanka) v Secretary of State for the Home Department

Continued refugee status does not, by itself, prevent refoulement under Refugee Convention article 33(2), nor create an indefinite presumption that removal would breach article 3 of the European Convention on Human Rights. The article 3 inquiry is forward-looking at the date of proceedings. Past recognition and failure to revoke or apply cessation remain relevant evidence, but do not determine present risk. Revocation and refoulement are distinct inquiries. A statutory presumption that a person convicted and sentenced to at least two years poses a danger to the community is not displaced merely by passing an extended driving test. Serious offending may outweigh family life under article 8 where deportation is proportionate.

The appellant, a Sri Lankan national, had been granted refugee status in 2000 after an asylum appeal, despite adverse credibility findings. He was later convicted of causing death by dangerous driving, conspiracy to pervert the course of justice, an offence under the Bail Act 1976, and driving while disqualified. The respondent made a deportation decision under the Immigration Act 1971 and certified the case under section 72 of the Nationality, Immigration and Asylum Act 2002.

The Asylum and Immigration Tribunal dismissed the appeal. Following a successful challenge and a consent order in 2009, the matter was remitted for reconsideration in light of EN (Serbia) and KA (South Africa). The Upper Tribunal dismissed the appeal on 21 March 2013. The central issue was whether unrevoked refugee status precluded refoulement or created a presumption of article 3 risk, together with challenges to the section 72 certification and the article 8 assessment.

The appeal was dismissed. The Upper Tribunal had made no material error of law.

1. Refugee status and refoulement. Article 33(2) of the Refugee Convention makes clear that refugee status does not itself prevent refoulement in the specified circumstances. Revocation or cessation is a distinct route. Under the framework identified in EN (Serbia) [2009] EWCA Civ 630, revocation concerns contemporary conditions in the country of nationality, whereas refoulement concerns the refugee’s conduct and characteristics. The Secretary of State has a power, but no obligation, to revoke refugee status before the tribunal considers whether the article 33(2) conditions are met.
2. Article 3 risk. The risk of ill-treatment must be assessed prospectively at the date of the proceedings. Past recognition as a refugee and the failure to revoke or apply cessation are relevant factors which may illuminate the present position. They do not create a continuing or indefinite presumption of article 3 ill-treatment on return.
3. Section 72 certification. The appellant had not rebutted the statutory presumptions arising from his conviction and sentence of more than two years. Passing the extended driving test required by section 36 of the Road Traffic Offenders Act 1988 did not establish that he was no longer a danger to the community. The Upper Tribunal was entitled to rely on the appellant’s offending and related conduct, including the later driving offence.
4. Article 8. The Upper Tribunal carefully weighed the appellant’s family life and the best interests of the children against the public interest in deportation. The seriousness of the offending supplied very serious reasons making the interference necessary and proportionate under article 8(2). There were no proper grounds for disturbing that assessment.

Lord Justice Vos agreed with Lord Justice Simon.

• Court of Appeal (Civil Division): dismissed the appeal against the Upper Tribunal’s determination. [2016] EWCA Civ 81
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s reconsidered appeal in a determination promulgated on 21 March 2013.
• Asylum and Immigration Tribunal: dismissed the original appeal in August 2007 and dismissed the reconsidered appeal in April 2008. The Court of Appeal later allowed the appeal by consent order and remitted the matter for reconsideration in light of EN (Serbia) [2009] EWCA Civ 630 and KA (South Africa).