The Secretary of State for the Home Department v MA (Somalia)

A decision to cease refugee status is the mirror image of the recognition decision. The authority must establish a significant and non-temporary change which has removed the circumstances justifying the original fear of persecution. It must also determine that no other Refugee Convention reason for persecution exists.

The assessment is individual. A functioning government or generally effective legal system is not an independent precondition to cessation, although its absence may show that adequate and lasting protection is unavailable.

Whether removal would breach article 3 of the Convention is a separate question. Economic deprivation or living conditions below humanitarian standards do not ordinarily establish such a breach.

The respondent, a Somali national belonging to the Reer Hamar minority clan, had received asylum because of the risk arising from his ethnicity. Following evidence of changed conditions in Mogadishu, the Secretary of State decided to cease his refugee status and rejected his human rights claims.

The First-tier Tribunal allowed his appeal after finding that he would probably live below acceptable humanitarian standards on return. The Upper Tribunal dismissed the Secretary of State’s appeal, relying on Somalia’s lack of a functioning unitary government and system of law and justice.

The Secretary of State appealed. The central issues were the test for cessation under the Qualification Directive 2004/83/EC, the relationship between cessation and article 3 of the Convention, the significance of economic deprivation on return, and the appropriate scope of remittal.

1. Appeal allowed. A cessation decision under article 11 of the Qualification Directive 2004/83/EC is the mirror image of the recognition decision. The authority must ask whether a significant and non-temporary change has removed the circumstances which justified the refugee’s fear of persecution and whether any other Refugee Convention basis for such fear exists.

2. The assessment must address the refugee’s individual situation. The authority must verify whether the relevant actors of protection have taken reasonable steps to prevent persecution and whether the refugee will have access to that protection. Protection may come from the state, another organisation controlling relevant territory, an international organisation or, depending on the evidence, another effective source.

3. A functioning government, an effective legal system protecting human rights generally, and adequate basic living conditions are not independent preconditions to cessation. Their presence or absence may nevertheless be evidence bearing on whether the individual has effective and lasting protection. The Court applied Abdulla and rejected the broader interpretation adopted by the Upper Tribunal.

4. The question whether removal would violate article 3 of the Convention is separate from the cessation decision. Following Said v Secretary of State for the Home Department [2016] Imm AR 1084, return to conditions of poverty or economic deprivation does not ordinarily violate article 3 merely because basic living standards are unavailable. The exceptional principles governing deprivation caused by intentional conduct, conflict or compelling humanitarian circumstances remain applicable.

5. The First-tier Tribunal applied the wrong cessation test by treating anticipated humanitarian conditions as determinative. Its fact-finding was also incomplete because it did not adequately consider employment prospects or the possibility of partial remittances. The Upper Tribunal likewise erred by concentrating on Somalia’s general systems of governance instead of the protection available to the respondent.

6. The case was remitted to a differently constituted First-tier Tribunal. Fresh findings were required concerning available protection, clan and state support, earning capacity and remittances. The unchallenged finding concerning the irrelevance of the respondent’s criminal offending was preserved.

1. Court of Appeal (Civil Division): By [2018] EWCA Civ 994, allowed the Secretary of State’s appeal, set aside the Upper Tribunal’s decision and remitted the case to a differently constituted First-tier Tribunal for fresh findings, subject to preservation of the unchallenged finding concerning criminal offending.
2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the Secretary of State’s appeal. It upheld the First-tier Tribunal’s conclusion and considered that the requirements for cessation were not established because Somalia lacked a functioning unitary government and system of law and justice.
3. First-tier Tribunal: Allowed the respondent’s appeal on 26 August 2015. It found that return would probably leave him living below acceptable humanitarian standards and held that paragraph 339A of the Immigration Rules was not satisfied.