JL v Secretary of State for the Home Department

In an individual cessation case, the Secretary of State bears the burden of showing that the circumstances supporting the original grant of refugee status have ceased under Article 1C(5) of the Refugee Convention and the Immigration Rules. If that original ground no longer applies, a claimant relying on a different protection ground bears the burden of proving it. The lower asylum standard is more accurately understood as an assessment of risk, conducted with most anxious scrutiny. Country-guidance risk categories must be kept distinct. A political change relevant to one category may be irrelevant to another. Credible past events do not establish a current risk where there is no reason to think that the authorities know of them or would infer the claimed connection.

JL, a national of the Democratic Republic of Congo, was granted refugee status in 2012 because, as an unaccompanied minor, he was considered especially vulnerable to Article 3 ill-treatment as a member of the particular social group of street children. Following his conviction and sentence for a criminal offence, the Secretary of State revoked his refugee status under paragraph 339A(v) of the Immigration Rules and refused his human rights claim.

The First-tier Tribunal allowed his appeals, but the Upper Tribunal set that decision aside for error of law and, on reconsideration, dismissed the appeals in the decision under appeal: [2023] UKUT (IAC). JL argued that the Secretary of State bore the burden of proving any alternative protection ground and that the Upper Tribunal had relied on an irrelevant political change. The central questions were the allocation of the burden of proof and whether JL faced a current risk because he might be perceived as connected with Rwandan rebels.

1. The appeal was dismissed unanimously. The Upper Tribunal had not erred in law in placing the burden of proving the alternative protection ground on JL.

2. Where refugee status has been granted on a particular ground, the Secretary of State bears the burden of showing that the circumstances connected with that recognition have ceased, as required by Article 1C(5) of the Refugee Convention and paragraph 339A(v) of the Immigration Rules. That principle is reflected in R (Hoxha) v Special Adjudicator [2005] UKHL 19, Minister for Immigration and Multicultural and Indigenous Affairs v Quah [2006] HCA 53, MM (Zimbabwe) v Secretary of State for the Home Department [2017] EWCA Civ 797, MA (Somalia) v Secretary of State for the Home Department [2018] EWCA Civ 994, MS (Somalia) v Secretary of State for the Home Department [2019] EWCA Civ 705 and KN (DRC) v Secretary of State for the Home Department [2019] EWCA Civ 1665.

3. Those authorities concern cessation of the original ground. Once that ground has ceased to exist, a different ground relied on by the claimant is logically an asylum claim analogous to the initial assessment. The claimant therefore bears the burden of proving the different ground. Abdulla v Bundesrepublik Deutschland [2010] ECR I-1493 supports that approach. Statements that the burden lies on the Secretary of State on all issues must be read in their context, as shown by MS (Somalia) and KN (DRC).

4. The applicable lower standard is an assessment of risk, not a conventional probability test. Credibility must be assessed with most anxious scrutiny: MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216. The Upper Tribunal was entitled to conclude that JL had not established a current risk despite accepting the substance of his historical account.

5. The risk categories in AB and DM v Secretary of State for the Home Department [2005] UKIAT 118 are distinct. The political change identified in PO (DRC) v Secretary of State for the Home Department [2023] UKUT 117 (IAC) might bear on a military or political opposition profile, but did not answer a claim based on perceived Rwandan connections. Any failure by the Upper Tribunal to distinguish those categories was immaterial. There was no reason to think that the DRC authorities would know of JL’s teenage detention in an FDLR camp, know of the allegations against his father, or perceive him as having Rwandan connections. His return to Kinshasa was also relevant. He was no longer a vulnerable minor and had no well-founded fear of ill-treatment on return.

• Court of Appeal (Civil Division): appeal against the Upper Tribunal’s decision dismissed on 24 April 2026: [2026] EWCA Civ 498.
• Upper Tribunal, Immigration and Asylum Chamber: set aside the First-tier Tribunal’s decision for error of law, then dismissed JL’s appeal on reconsideration in the decision promulgated on 24 October 2023: [2023] UKUT (IAC).
• First-tier Tribunal: allowed JL’s appeals against revocation of refugee status and refusal of his Article 8 claim in a decision promulgated on 8 July 2022.