The Secretary of State for the Home Department v AMA

The compelling-reasons proviso in article 1C(5) of the 1951 Refugee Convention applies in the United Kingdom only to statutory refugees within article 1A(1). It cannot itself preserve the refugee status of a modern refugee under article 1A(2).

Cessation requires a symmetrical, individual assessment under the refugee definition and a significant and non-temporary change. Internal relocation may in principle be relevant, but continuing persecution in the home area will ordinarily prevent the required change from being fundamental and durable. Departmental policy concerning atrocious past persecution cannot independently found a successful statutory appeal, though past persecution may be relevant to whether internal relocation is unduly harsh.

The Secretary of State appealed against the First-tier Tribunal’s decision of 20 November 2017 allowing AMA’s appeal against a deportation decision and cessation of his refugee status.

AMA, a Somali national, had obtained refugee status through family reunion after his mother was granted asylum. The Secretary of State accepted that he remained at risk in his home area of Qoryoley but contended that he could live in Mogadishu. The First-tier Tribunal held that the family’s past persecution engaged the compelling-reasons proviso, and also expressed the view that return to Mogadishu would be unsafe.

The central issues were whether that proviso applied to AMA, whether refugee status could cease where the asserted change was confined to a proposed internal-relocation area, and whether relocation to Mogadishu was safe and reasonable.

1. Appeal dismissed. The First-tier Tribunal erred by applying the compelling-reasons proviso in article 1C(5) of the 1951 Refugee Convention to AMA. The proviso is confined by its text to refugees falling within article 1A(1), not modern refugees within article 1A(2). The conclusion was supported by R v Special Adjudicator ex parte Hoxha [2015] UKHL 19. Paragraph 339A of the Immigration Rules reflected that position.

2. That error was not material. Cessation under article 1C(5) requires an individual and symmetrical application of the refugee definition at the grant and cessation stages. The Secretary of State bears the burden of showing a change that is significant and non-temporary, so that the circumstances underlying the fear of persecution have been permanently eradicated.

3. Internal relocation is in principle relevant because the question remains whether the person can avail himself of the protection of his country. However, where there is an accepted continuing risk of Convention persecution in the home area, it will generally be very difficult to establish that change is fundamental and durable. The Tribunal disagreed with the absolute proposition in MS (Art 1C(5)- Mogadishu) Somalia [2018] UKUT 00196 (IAC) that a localised change can never lead to cessation. It held that this is possible in principle, but highly unlikely in practice.

4. On the accepted facts, AMA remained at risk in Qoryoley and could not safely travel there from Mogadishu. No reasonable tribunal could find the required change in circumstances. Further, applying the country guidance in MOJ and others (Return to Mogadishu) Somalia CG v SSHD [2014] UKUT 00442 (IAC), relocation to Mogadishu would in any event be unduly harsh. AMA had no links there, lacked relevant clan support, and had suffered sustained and atrocious persecution.

5. The Secretary of State’s policy on compelling reasons could inform a substantive assessment, but could not itself establish a breach of the Refugee Convention within the limited appeal rights under section 82 of the Nationality, Immigration and Asylum Act 2002. The First-tier Tribunal’s decision was therefore preserved.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The First-tier Tribunal made an error of law concerning article 1C(5), but it was not material.
• First-tier Tribunal: On 20 November 2017, allowed AMA’s appeal against the decision of 13 June 2017 to make a deportation order, cease his refugee status and refuse his human-rights claim.