S M v Secretary Of State For The Home Department

The principles in Essa (Revocation of protection status appeals) continue to apply after EU exit. A post-exit grant of refugee leave recognises Convention Refugee Status under domestic law; revocation removes that domestic mechanism but does not itself terminate Convention status.

Article 33(2) permits removal of a refugee who presents the required danger, but does not cancel refugee status. Where section 72 applies, section 72(10) requires dismissal of the appeal on Refugee Convention grounds. The Tribunal must nevertheless determine whether the person continues to have Convention Refugee Status and its associated rights and benefits. Failure to make that determination is an error, but it may be immaterial where the statutory dismissal remains required.

The appellant, an Eritrean national recognised as a refugee in 2007 and later granted indefinite leave to remain, appealed against the respondent’s 3 November 2021 decision revoking his refugee leave following a criminal conviction. The respondent relied on paragraph 339AC of the Immigration Rules and section 72 of the Nationality, Immigration and Asylum Act 2002, finding that the appellant had been convicted of a particularly serious crime and posed a danger to the community.

The First-tier Tribunal dismissed the appeal under section 72(10). Permission to appeal was granted to consider whether the First-tier Tribunal had erred by failing to determine separately whether revocation breached the United Kingdom’s obligations under the Refugee Convention, and whether the principles in Essa (Revocation of protection status appeals) continued after EU exit.

1. The Upper Tribunal held that the broad principles in Essa (Revocation of protection status appeals) continue to apply after EU exit. The Qualification Directive no longer governs refugee leave, which is now granted under domestic law by reference to paragraph 334 of the Immigration Rules. Revocation removes the domestic mechanism recognising refugee status; it does not, by itself, terminate Convention Refugee Status.
2. Article 33(2) is an exception to non-refoulement, not a cessation or exclusion clause. A person to whom it applies remains a Convention refugee, although capable of being removed as a “removable refugee”.
3. Where revocation is based on danger to the community and the appellant fails to rebut the section 72 presumptions, section 72(10) requires dismissal of the appeal on Refugee Convention grounds. Nevertheless, section 86 requires the Tribunal to determine the ground under section 84(3). Findings may be required on continuing Convention Refugee Status so that the person’s Convention rights and benefits pending removal are respected.
4. The First-tier Tribunal erred by making no specific finding on the section 84(3) ground. That error did not affect the outcome. The respondent accepted that the appellant continued to have Convention Refugee Status, and the Tribunal concluded that the appellant’s new leave, whatever its label, could afford the rights and benefits to which he was entitled. The statutory obligation to dismiss the appeal therefore remained. The First-tier Tribunal decision was not set aside and stood.

• Upper Tribunal (Immigration and Asylum Chamber): found an error of law in the First-tier Tribunal’s reasoning, but concluded that it was immaterial. The decision was not set aside and was allowed to stand.
• First-tier Tribunal: dismissed the appeal against revocation of protection status under section 72(10) of the Nationality, Immigration and Asylum Act 2002.