The Secretary of State for the Home Department v Mosira

On a statutory appeal against an automatic deportation decision, the Tribunal must determine whether removal would breach the United Kingdom’s obligations under the Refugee Convention. It may examine the reasons advanced in an earlier cessation decision without exceeding its appellate jurisdiction.

For Article 1C(5), the relevant circumstances are those in connection with which the individual was recognised as a refugee. A change in country conditions that is unrelated to that basis cannot establish cessation. Where the Secretary of State confines her public-order case to Article 33(2), the Tribunal is entitled to decide that case and to find the statutory presumption of danger rebutted on cogent evidence.

The respondent, a Zimbabwean national, entered the United Kingdom as a minor under a family-reunion policy and was accorded refugee status because his mother had been recognised as a refugee. Following convictions for serious sexual offences and a three-year sentence, the Secretary of State made an automatic deportation decision.

The First-tier Tribunal dismissed his appeal. The Upper Tribunal first set that decision aside for procedural unfairness and then re-made the decision. It held that the respondent’s refugee status could not be ceased by reference to changed conditions in Zimbabwe, and that he had rebutted the presumption that he was a danger to the community. The Secretary of State appealed, challenging jurisdiction, cessation, refugee status and the rebuttal finding.

1. Appeal dismissed unanimously. Sales LJ gave the judgment, with which Henderson and Black LJJ agreed. The Upper Tribunal had jurisdiction to determine whether removal consequent on the automatic deportation decision would breach the United Kingdom’s Refugee Convention obligations. The respondent could advance that ground under Section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, without first obtaining judicial review of the separate cessation decision. The Tribunal’s examination of the cessation reasons was part of deciding that statutory appeal, not an impermissible free-standing review.
2. The court refused permission to advance a new argument that Article 1C(5) was wholly irrelevant because the respondent had never satisfied Article 1A(2). The point was arguable, but it departed from the Secretary of State’s prior concession, was raised at the last moment, was unfair to the respondent and had not been fully argued.
3. The Upper Tribunal correctly held that Article 1C(5) did not permit cessation. The respondent had been recognised under the family-reunion policy to join his mother, who continued to hold refugee status. Those were the circumstances connected with his recognition. Improved conditions in Zimbabwe and any reduced risk from its authorities did not cause those circumstances to cease.
4. The Secretary of State had not relied on the potentially wider public-order ground in Article 32(1). She had instead confined her case to Article 33(2) and Section 72 of the Nationality, Immigration and Asylum Act 2002. The Upper Tribunal was therefore entitled to determine whether the Section 72(2) presumption had been rebutted. Its conclusion was rationally supported by the respondent’s evidence, probation reports, evidence of rehabilitation and the First-tier Tribunal’s findings on remorse and reduced risk of reoffending.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal and upheld the Upper Tribunal’s decision: [2017] EWCA Civ 407.
• Upper Tribunal (Immigration and Asylum Chamber): in August 2015, re-made the deportation appeal and allowed it, holding that cessation had not been established and that the Section 72(2) presumption under the Nationality, Immigration and Asylum Act 2002 was rebutted.
• Upper Tribunal (Immigration and Asylum Chamber): in September 2014, set aside the First-tier Tribunal’s decision because the respondent had not had an opportunity to address the cessation case based on his becoming an adult, and directed that the appeal be re-made.
• First-tier Tribunal: dismissed the respondent’s appeal against the automatic deportation decision.