Secretary of State for the Home Department v KN (DRC)

When considering cessation of refugee status under Article 1C(5) of the Refugee Convention 1951, the decision-maker must examine broadly the circumstances connected with the original recognition. For a person recognised as a refugee through a family policy, those circumstances may include the principal refugee’s Convention persecution.

The Secretary of State must prove that the relevant circumstances have ceased and that no other current circumstances create a Convention fear of persecution. The assessment must focus on the individual’s present characteristics and conditions in the country of nationality.

A recognised refugee who is not liable to refoulement under Article 33(2) retains Convention protection unless a cessation provision applies. It is insufficient simply to reconsider whether the person currently satisfies the Article 1A(2) definition.

The respondent, a national of the Democratic Republic of Congo, was recognised as a refugee as a child after his father had received refugee status because of political persecution. Following the respondent’s serious criminal offending, the Secretary of State revoked his refugee status under Article 1C(5) of the Refugee Convention 1951 and paragraph 339A(v) of the Immigration Rules.

The First-tier Tribunal held that the respondent had rebutted the statutory presumption that he constituted a danger to the community. It also held that the Secretary of State had not justified cessation. The Upper Tribunal set aside the First-tier Tribunal’s reasoning but remade and allowed the appeal. It considered that political changes in the DRC could not affect the circumstances of recognition because the respondent had received refugee status as his parents’ dependant.

The Secretary of State appealed. The issues were whether the Upper Tribunal had construed the relevant circumstances too narrowly and whether retained recognition was immaterial if the respondent no longer met the refugee definition.

1. Appeal allowed in part and case remitted. The Upper Tribunal construed Article 1C(5) of the Refugee Convention 1951 and paragraph 339A(v) of the Immigration Rules too narrowly. The case was remitted for a full investigation of whether the circumstances connected with the respondent’s recognition as a refugee had ceased to exist. Baker LJ gave the judgment, with which Leggatt and McCombe LJJ agreed.

2. The relevant inquiry is broader than asking whether the immediate ground upon which refugee status was granted has changed. The respondent received status under a policy which automatically recognised family members of a recognised refugee. His father’s persecution by the DRC regime and well-founded fear of further persecution were nevertheless part of the circumstances connected with the respondent’s own recognition. The political situation in the DRC was therefore material: paras [33]–[36].

3. [2017] EWCA Civ 407 did not establish a general rule for all dependants of refugees. It was confined to circumstances in which neither the parent nor the child had received status on a basis covered by the Convention. The Upper Tribunal had therefore erred in treating that decision as controlling the respondent’s case: para [35].

4. The Secretary of State bears the burden of establishing cessation. She must show both that any circumstances which would have justified a fear of Convention persecution at the time of recognition have ceased and that no other present circumstances create such a fear. The investigation must focus on the individual’s current characteristics and current conditions in the country of nationality: para [36]. The evidence had not been investigated sufficiently for the Court of Appeal to determine those matters.

5. The second ground of appeal failed. Article 33(2) may permit refoulement without prior cessation where a refugee has committed a particularly serious crime and constitutes a danger to the community. Here, however, the First-tier Tribunal had found that the respondent rebutted the presumption under section 72(2) of the Nationality, Immigration and Asylum Act 2002, and that finding was not appealed. He consequently retained Article 33 protection: para [37].

6. Once refugee status has been officially recognised, continued Convention protection is not determined merely by asking afresh whether the person currently satisfies Article 1A(2). A recognised refugee who is not liable to refoulement under Article 33(2) may be deported only if the Convention ceases to apply under Article 1C. Official recognition carries a legitimate expectation that status will not be withdrawn without demonstrably good and sufficient reason: para [38].

1. Court of Appeal (Civil Division): By [2019] EWCA Civ 1665, allowed the Secretary of State’s appeal on the construction of Article 1C(5), dismissed the second ground, and remitted the case to the Upper Tribunal for a full cessation inquiry.

2. Upper Tribunal (Immigration and Asylum Chamber): Held that the First-tier Tribunal’s reasoning was unsustainable, remade the decision, and allowed the respondent’s appeal because revocation breached the United Kingdom’s obligations under the Refugee Convention 1951.

3. First-tier Tribunal: Held that the respondent had rebutted the statutory danger-to-the-community presumption and that the Secretary of State had not discharged the burden supporting cessation. It rejected the respondent’s human-rights appeal against deportation.