Secretary of State for the Home Department v MS (Somalia)

A refugee’s status may cease where internal relocation has become reasonable, even if the relevant change affects only part of the country of origin. The cessation inquiry mirrors the inquiry on recognition of refugee status, but it must be conducted strictly and restrictively. The Secretary of State bears the burden of proving a change that is significant and non-temporary.

The statutory presumptions in section 72 of the Nationality, Immigration and Asylum Act 2002 apply once their factual conditions are established, whether or not a certificate has been issued. Country guidance on living conditions cannot replace the individual assessment required by article 3 of the ECHR.

MS, a Somali national granted asylum in 2012, was made subject to a deportation order after convictions including a sentence exceeding two years’ imprisonment. The Secretary of State also decided that his refugee status had ceased.

The First-tier Tribunal allowed MS’s appeal. It held that internal relocation could not in principle justify cessation, did not apply the section 72 presumptions, and found that removal would breach article 3 of the ECHR. The Upper Tribunal dismissed the Secretary of State’s appeal.

The Secretary of State appealed on cessation, section 72, and the legal test for article 3. The central question was whether the earlier tribunals had applied the correct legal principles on each issue.

1. Appeal allowed and case remitted. Hamblen LJ, with whom Newey LJ and Underhill LJ agreed, held that each of the three grounds disclosed an error of law.

2. A cessation decision under article 1C(5) of the Refugee Convention is the mirror image of the recognition decision. Where refugee status was granted because internal relocation was not reasonable, cessation may follow if a change makes relocation reasonable, provided the change is significant and non-temporary. The approach remains strict and restrictive, and the Secretary of State bears the burden of proof. The safe area need not constitute a substantial part of the country, although its size may bear on reasonableness and durability. The assessment depends on the evidence in the individual case. The First-tier Tribunal and Upper Tribunal therefore erred in treating internal relocation as incapable in principle of supporting cessation.

3. The section 72 presumptions in the Nationality, Immigration and Asylum Act 2002 apply generally once the factual conditions are met. A certificate under section 72(9) has a procedural effect only; it does not determine whether the presumptions arise. Since MS’s sentence of at least two years was before the tribunals, they were required to apply the presumptions. MS may seek to rebut them on remission.

4. The First-tier Tribunal erred by treating paragraph 408 of MOJ as determinative of an article 3 claim. As Said explains, the listed economic and support factors cannot substitute for an examination of whether removal would expose the individual to treatment contrary to article 3. The error was material.

Underhill LJ added that the fact that a refugee has long been safe in the host country is accommodated by the strict cessation standard, rather than by altering the basic criteria for protection.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal on all three grounds and remitted the case.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the Secretary of State’s appeal on 22 March 2018.
• First-tier Tribunal: Allowed MS’s appeal on 20 September 2017.