The Secretary of State for the Home Department v MM (Zimbabwe)

Refugee status may cease following a durable change in the circumstances connected with its recognition. The change may concern general conditions in the country of nationality, the refugee’s personal characteristics, or a combination of both. The Secretary of State bears the burden of demonstrating cessation.

By contrast, a person resisting deportation under articles 2 or 3 of the European Convention on Human Rights must establish a current real risk. A medical claim which fails the stringent article 3 threshold cannot ordinarily succeed under article 8 without a separate or additional element engaging private or family life. Profound mental collapse may arguably qualify as a very exceptional article 3 medical case.

MM, a Zimbabwean citizen previously recognised as a refugee because of his MDC activities, was made subject to deportation following serious sexual offences committed while suffering from schizophrenia. The First-tier Tribunal allowed his appeal, finding that the Secretary of State had not established cessation of refugee status, that MM had rebutted the statutory presumption of danger to the community, and that deportation would breach article 8 because necessary psychiatric treatment would be inaccessible in Zimbabwe.

The Upper Tribunal found no material error of law and dismissed the Secretary of State’s appeal. The Secretary of State appealed on the treatment of cessation, current risk, article 8 medical grounds and section 72 of the Nationality, Immigration and Asylum Act 2002. The central questions were how changes in general and personal circumstances affect cessation, who bears the burden under articles 2 and 3, and whether medical consequences insufficient for article 3 could establish an article 8 claim.

1. Appeal allowed and case remitted. The First-tier Tribunal erred in its treatment of cessation, current risk under articles 2 and 3, and the medical claim under article 8. The Upper Tribunal was required to determine all issues afresh: per Sales LJ, with whom Henderson LJ and Black LJ agreed.

2. Article 1C(5) of the Refugee Convention requires a durable change in the circumstances connected with recognition as a refugee. Those circumstances commonly combine conditions in the country of nationality with the individual’s characteristics. Cessation can therefore result from changed country conditions, changed personal characteristics, or both. Under article 14(2) of the Qualification Directive, the Secretary of State bears the burden of demonstrating cessation on an individual basis.

3. The First-tier Tribunal abdicated its fact-finding responsibility by treating the absence of fuller evidence about MM’s political profile as decisive. It had to assess the available evidence and decide whether his prolonged political inactivity and changed conditions in Zimbabwe amounted to a durable relevant change. The country guidance did not establish that every former or low-level MDC supporter faced a real risk. Risk depended upon the significance of the person’s current profile and individual circumstances.

4. For articles 2 and 3 of the European Convention on Human Rights, the person resisting deportation bears the burden of showing a real risk under current conditions. Earlier recognition as a refugee creates no presumption of present risk. Although the inquiries under the Convention and article 1C(5) will often overlap, an article 2 or 3 bar is absolute, whereas the Refugee Convention may permit deportation under article 33(2).

5. The First-tier Tribunal was entitled, on the evidence before it, to find that MM had rebutted the section 72 presumption because medication controlled his condition and he was motivated to comply with treatment. The tribunal had properly considered the gravity of the offences. Nevertheless, this issue was also remitted for fresh examination, including the reliability of continued compliance.

6. A medical claim which fails under article 3 cannot succeed under article 8 merely because effective treatment is unavailable in the destination country. It requires a separate or additional element engaging the article 8 paradigm of forming and enjoying relationships, and remains subject to the stringent medical-treatment principles. The First-tier Tribunal identified no such independent element.

7. It was nevertheless arguable that removal leading to profound mental collapse, possibly amounting to destruction of personality, could be one of the very exceptional cases engaging article 3. That question was left open for fresh determination.

1. Court of Appeal (Civil Division): By [2017] EWCA Civ 797, unanimously allowed the Secretary of State’s appeal and remitted all issues to the Upper Tribunal for fresh determination.
2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the Secretary of State’s appeal, holding that the First-tier Tribunal had made no error of law on risk upon return or article 8.
3. First-tier Tribunal: Allowed MM’s appeal on asylum and human-rights grounds. It found that cessation had not been established, that the section 72 presumption had been rebutted, and that deportation would breach article 8, although the medical article 3 claim failed.