The Secretary of State for the Home Department v MS

Refugee status cannot be ceased under Article 1C(5) merely because conditions have fundamentally and durably improved in one possible area of return. The relevant circumstances are those which gave rise to the recognised refugee’s fear in the country of nationality. Cessation requires that basis of persecution to have been removed without requiring the refugee to relocate to a particular safe area.

The cessation clauses require a strict and restrictive approach. Internal relocation may be relevant when refugee status is granted, but it cannot be used to make cessation easier than an initial assessment of asylum. UNHCR guidance is not determinative, but its approach on this issue was correct.

The Secretary of State appealed against a First-tier Tribunal decision allowing MS’s appeal against the revocation of his refugee status and a deportation decision. MS, a Somali national from Kismayo and a member of the Ashraf minority clan, had been recognised as a refugee in 2012.

The Secretary of State relied on improved conditions in Mogadishu, contending that MS could be returned there despite his origin in Kismayo. The First-tier Tribunal held that Article 1C(5) required fundamental and enduring change throughout the country of nationality, rather than change in a proposed area of internal relocation.

The central issue was whether a viable internal relocation option could by itself justify cessation of recognised refugee status under Article 1C(5) of the Refugee Convention.

1. Appeal dismissed. The First-tier Tribunal had made no material error of law. Its decision allowing MS’s appeal against cessation of refugee status therefore stood.

2. Article 1C(5) of the Refugee Convention and paragraph 339A(v) of the Immigration Rules require consideration of the circumstances in connection with which refugee status was recognised and of whether the relevant change is significant and non-temporary. The Secretary of State’s decision instead treated improvement in Mogadishu as decisive, although MS’s original fear arose in Kismayo.

3. That approach was fundamentally flawed. At the grant stage, internal relocation may defeat a claim if it is reasonable and not unduly harsh. At the cessation stage, however, refugee status cannot be withdrawn simply because the Secretary of State can identify one area to which the person could now relocate. The basis for persecution must have been removed without making safety dependent on return to a specified part of the country.

4. The Tribunal applied the strict and restrictive approach to cessation identified in Hoxha & Anor v Secretary of State for the Home Department [2005] UKHL 19. It accepted that UNHCR guidance was not binding, consistently with AH (Algeria) v Secretary of State for the Home Department [2015] EWCA Civ 1003, but held that the guidance correctly expressed this aspect of Article 1C(5).

5. The First-tier Tribunal had erred in saying that the Secretary of State had not considered MS’s Kismayo origin. That factual error was immaterial. It was unnecessary to decide the separate challenge to the assessment of MS’s likely circumstances in Mogadishu, but the Upper Tribunal stated that it would in any event have found no error in that assessment.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The First-tier Tribunal’s decision allowing MS’s appeal against cessation of refugee status stood.
• First-tier Tribunal: Allowed MS’s appeal against the decision to revoke his refugee status and make a deportation order. It concluded that he remained entitled to protection under the Refugee Convention and/or article 3 of the ECHR.