ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Coker / Upper Tribunal Judge Rimington
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal, Civil Division)
LORD JUSTICE NEWEY
LORD JUSTICE HADDON-CAVE
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
Raza Husain QC, Benjamin Bundock, and Eleanor Mitchell (instructed by Duncan Lewis) for the Respondent
Hearing dates : 2-3 July 2019
Crown Copyright ©
Lord Justice Haddon-Cave:
(A) The Main Appeal: in the Main Appeal (C5/2018/2614), the Secretary of State for the Home Department ("SSHD") appeals against the decision by Upper Tribunal (Immigration and Asylum) Judge ("UTJ") Coker on 5th July 2018 to set aside the decision by First-Tier Tribunal (Immigration and Asylum) Judge ("FtTJ") Sullivan on 22nd May 2017 to dismiss the appeal by JS against his deportation order dated 5th February 2016.
(B) The Cross-Appeal: in the Cross-Appeal, JS challenges the said decision of UTJ Coker on 5th July 2018 as regards her finding that FtTJ Sullivan did not materially err in refusing the SSHD's appeal on Article 3 grounds.
(C) The Linked Appeal: In a Linked Appeal arising out of the same facts and involving the same parties (C2/2019/1244), JS appeals against the decision of UTJ Rimington dated 7th May 2019 whereby she refused JS's application for permission to apply for judicial review against what JS contended was the SSHD's change of position in the context of the main appeal (C5/2018/2614) as to whether JS was entitled to the protection of the Refugee Convention and certified the claim as totally without merit.
JS's mother granted asylum 2005
JS granted entry clearance 2006
JS's criminal conviction 2013
FtTJ Sullivan's determination 22nd May 2017
"Basis of Appellant's entry to the United Kingdom May 2006
29. The Appellant came to the United Kingdom on 26 May 2006 to join his mother. I am satisfied that he made his application on 19 December 2005 for entry clearance as "recognised refugees and their dependants" and that his application was sponsored by his mother. I am satisfied that on 10 May 2006 the Appellant was granted indefinite leave to enter the United Kingdom for family reunion. The specimen vignette [ ] makes no mention of refugee status. The Appellant's brother, Hussein Kajja, has been able to provide a copy of the visa which was affixed to his passport; he also travelled to the United Kingdom on 26 May 2006. His visa is endorsed "Multi Visa Family Reunion sponsor". I am satisfied that the visa in the Appellant's passport would have mirrored that in his brother's passport (bar the entry date).
30. The various policy documents and emails filed on 1 March 2017 indicated that from July 1998 until 2011 members of the family of a recognised refugee were granted "status in line" with the refugee rather than "leave in line" with him or her. It appears that the policy in place at the dates of the Appellant's application for a UK visa and of the issue of a visa to him was that published in 2003. Paragraph 3.1, section 2, chapter 6 of the Asylum Policy instructions 2003 states: "If a person has been recognised as a refugee in the UK we will normally recognise family members in line with them. If the family are abroad we will normally agree to their admission as refugees."
31. In light of that policy and the documentary evidence I am satisfied that on 10 May 2006 the Appellant was granted entry clearance as if he was a refugee and on arrival in the United Kingdom on 26 May 2006 he was granted leave to enter as a refugee. I am satisfied that he was recognised as a refugee because of his mother's history, her status as a refugee and his relationship to her."
"39. I am satisfied that the Appellant was recognised as a refugee because of the account his mother had given prior to his arrival in the United Kingdom. I am satisfied that he was not recognised as a refugee on the basis of any activity or profile of his own or due to any suspicion about him, his activities or his views. I am satisfied that the approach to former rebels has softened since the Appellant was granted asylum; there has been insufficient reason for me to depart from [PN (Lord's Resistance Army) Uganda CG  UKAIT 00022]. I am satisfied that the conditions for cessation under paragraph 339A(v) [of the Immigration Rules] were established".
UTJ Coker's determination 5th July 2018
UTJ Coker's reasoning
"23. Where a person has been recognised as a refugee under the family reunion policy, it is the circumstances that led to that recognition namely the relationship between the refugee and the individual, that are to be addressed when deciding whether to cease Refugee Status under Article 1C(5) of the Refugee Convention. Where the SSHD has not taken a decision to curtail or revoke the status of the person through whom the individual was recognised as a refugee, the First-Tier Tribunal cannot reach a decision that JS's status has been curtailed or revoked."
"38. In accordance with Mosira, JS remains a refugee under the Refugee Convention. His mother remains a refugee; he was granted refugee status on the basis of her recognition as a refugee and the circumstances of that recognition have not changed or at least the SSHD has not established that they have changed. The attempt by the SSHD to utilise a change of circumstances in Uganda to justify the cessation of JS's refugee status in accordance with article 1C(5) under the 1951 Convention cannot succeed because the appellant did not gain his refugee status on that basis. The SSHD's conclusion to that effect is therefore wrong in law.
39. That JS is a refugee does not preclude his removal from the UK Article 33(2) Refugee Convention. But JS can invoke the more generous protection of Article 32 Refugee Convention he is a refugee lawfully on the territory of the UK and can only be expelled "on grounds of national security or public order".
40. It follows that not only did the First-tier Tribunal approach the issue of cessation incorrectly and conclude that the circumstances in Uganda were such that [ ] Article 1C(5) was met, but the consequences of that error are material."
UTJ Rimington's refusal of permission for judicial review May 2019
THE LEGAL FRAMEWORK
The Refugee Convention
DEFINITION OF THE TERM "REFUGEE"
A. For the purposes of the present Convention, the term "refugee" shall apply to any person who:
(2) [ ] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country
C. This Convention shall cease to apply to any person falling under the terms of section A if:
(5) He can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of his country of nationality;
(6) Being a person who has no nationality he is, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, able to return to his former habitual residence; "
"1. The Contracting State shall not expel a refugee lawfully in their territory save on grounds of national security or public order. "
PROHIBITION OF EXPULSION OR RETURN ("REFOULEMENT")
"1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
Incorporation of the Refugee Convention into UK domestic law
(1) The Refugee Convention is incorporated in respect of the discharge of executive functions relating to immigration by s. 2 of the Asylum and Immigration Appeals Act 1993 ("the AIAA 1993").
(2) The Refugee Convention is incorporated into the statutory appeals regime under the NIAA 2002.
The Qualification Directive
Nationality, Immigration and Asylum Act 2002 ("the NIAA 2002")
"327. Under these Rules an asylum applicant is a person who claims that it would be contrary to the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees for him to be removed from or required to leave the United Kingdom. All such cases are referred to in these Rules as asylum applications.
328. All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees
334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and
(ii) he is a refugee, as defined by the Convention of Protocol [sic]; and
(iii) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.
336. An application which does not meet the criteria set out in paragraph 334 will be refused.
349. A spouse or minor child accompanying a principal applicant may be included in his application for asylum as his dependant. A spouse or minor child may also claim asylum in his own right. If the principal applicant is granted asylum and leave to enter or remain any spouse or minor child will be granted leave to enter or remain for the same duration. The case of any dependant who claims asylum in his own right will be considered individually in accordance with paragraph 334 above
352D Requirements for leave to enter or remain as the child of a refugee
The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who has been granted asylum in the United Kingdom are that the applicant:
(i) is the child of a parent who has been granted asylum in the United Kingdom; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and
(iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum; and
(v) would not be excluded from protection by virtue of article 1F of the [Refugee Convention] if he were to seek asylum in his own right; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity."
"339A Refugee Convention ceases to apply (cessation)
This paragraph applies when the SSHD is satisfied that one or more of the following applies:
(v) they can no longer, because the circumstances in connection with which they have been recognised as a refugee have ceased to exist, continue to refuse to avail themselves of the protection of the country of nationality; or
In considering (v) and (vi), the SSHD shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded."
Family Reunion Policy
"If a person has been recognised as a refugee in the UK we will normally recognise family members in line with them. If the family are abroad we will normally agree to their admission as refugees.
It may not always be possible to recognise the family abroad as refugees e.g. they may have a different nationality to the sponsor, or they may not wish to be recognised as refugees. However, if they meet the criteria set out in paragraph 2, they should still be admitted to join the sponsor."
"28. A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.
29. Determination of refugee status is a process which takes place in two stages. Firstly, it is necessary to ascertain the relevant facts of the case. Secondly, the definitions in the 1951 Convention and the 1967 Protocol have to be applied to the facts thus ascertained.
30. The provisions of the 1951 Convention defining who is a refugee consist of three parts, which have been termed respectively "inclusion", "cessation" and "exclusion" clauses.
31. The inclusion clauses define the criteria that a person must satisfy in order to be a refugee. They form the positive basis upon which the determination of refugee status is made. The so-called cessation and exclusion clauses have a negative significance; the former indicate the conditions under which a refugee ceases to be a refugee and the latter enumerate the circumstances in which a person is excluded from the application of the 1951 Convention although meeting the positive criteria of the inclusion clauses."
"115. The last two cessation clauses [1C(5) and (6)] are based on the consideration that international protection is no longer justified on account of changes in the country where persecution was feared because the reasons for a person becoming a refugee have ceased to exist."
"116. The cessation clauses are negative in character and exhaustively enumerated. They should therefore be interpreted restrictively, and no other reason may be adduced by way of analogy to justify the withdrawal of refugee status. "
"117. Article 1C does not deal with the cancellation of refugee status. Circumstances may, however, come to light that indicate that a person should never have been recognized as a refugee in the first place; e.g. if it subsequently appears that refugee status was obtained by a misrepresentation of material facts, or that the person concerned possesses another nationality, or that one of the exclusion clauses would have applied to him had all the relevant facts been known. In such cases, the decision by which he was determined to be a refugee will normally be cancelled."
"135. "Circumstances" [in Article 1C(5)] refer to fundamental changes in the country, which can be assumed to remove the basis of the fear of persecution. A mere possibly transitory change to the facts surrounding the individual refugee's fear, which does not entail such major changes of circumstances, is not sufficient to make the clause applicable. A refugee's status should not in principle be subject to frequent review to the detriment of his sense of security, which international protection is intended to provide."
(A) THE MAIN APPEAL
(1) Ground 1: The UTJ materially erred in holding that "the relevant circumstances in connection with which [JS] had been recognised as a refugee", within the meaning of Article 1C(5) Refugee Convention and paragraph 339A(v) Immigration Rules, had not ceased to exist because his mother continued to be recognised as a refugee.
(2) Ground 2: The UTJ materially erred in holding that JS had at any time been a refugee within the meaning of the Refugee Convention and consequently that he was in principle entitled to the protection contained in Article 32 thereof.
(3) Ground 3: The UTJ materially erred in holding that JS was "a refugee lawfully resident" in the UK at the time the Appellant made the appealed decisions, such that he was entitled to the protection of Article 32 of the Refugee Convention.
(1) Ground 1: If JS was granted "refugee" status on the basis that he was a refugee under the Refugee Convention, the cessation criteria were met and, a consequence, he was not entitled to the protection of Article 32.
(2) Ground 2: Alternatively, if JS was granted refugee status but was not a Refugee Convention refugee, the Refugee Convention does not apply and ergo JS was not entitled to the protection of Article 32.
SSHD's submissions on Ground 1
(1) The assumed premise of Ground 1 is that JS was granted refugee status because he was, or was recognised to be, a "refugee" as defined in the Refugee Convention; and, accordingly, it followed ex hypothesi that JS had been recognised as a refugee in his own right due to the personalised risk to him on return to Uganda.
(2) The risk to JS could properly be inferred from the activities of his mother; and the risk to JS's mother (and inferentially to JS) was evidenced by the unchallenged findings of FtTJ Sullivan at .
(3) It followed that, if JS was properly recognised as a refugee in his own right under the Refugee Convention, UTJ Coker was wrong in two respects:
(a) First, UTJ Coker was wrong to conclude that the "circumstances in connection with which [JS] had been recognised as a refugee" were that "his mother was a refugee and she remains a refugee".
(b) Second, UTJ Coker was wrong to hold that FtTJ Sullivan had erred in determining the matter on the basis of the (absence of any) continuing personal risk to JS himself on his return to Uganda (see UTJ Coker's decision at  and ).
(4) There was no longer any personal risk to JS on his return to Uganda because the country conditions had ameliorated. Accordingly, ex hypothesi, JS was no longer a "refugee" under the Refugee Convention entitled to the protection of Article 32 and UTJ Coker erred in holding otherwise.
(5) The Qualification Directive does not assist JS in arguing entitlement to Article 32 protection because Article 14(6) of the Directive provides for the entitlement to rights equivalent to Article 32 of the Refugee Convention, but not where a person has ceased to be or has never been a refugee (as in the present case).
JS's submissions on Ground 1
Principles of construction - Vienna Convention (1969)
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable."
Meaning of "refugee" in Article 1 of the Refugee Convention
"The expression "well-founded fear of being the victim of persecution for reasons of race, religion, nationality or political opinion" means that a person has been either actually a victim of persecution or can show good reason why he fears persecution." (at p.39) (emphasis added)
FtTJ Sullivan's findings
"31. In light of that [Family Reunion] policy and the documentary evidence I am satisfied that on 10 May 2006 the Appellant was granted entry clearance as if he was a refugee and on arrival in the United Kingdom on 26 May 2006 he was granted leave to enter as a refugee. I am satisfied that he was recognised as a refugee because of his mother's history, her status as a refugee and his relationship to her." (emphasis added)
SSHD's submissions on Ground 2
JS's submissions on Ground 2
(1) First, the SSHD should not be permitted to argue before this Court that JS is not a "refugee" having (i) granted JS "refugee" status on entry and (ii) conceded in the proceedings below that JS was a "refugee". It is too late to withdraw the concession.
(2) Second, the SSHD recognised JS as a "refugee" on the grounds of family unity and he was, accordingly, owed obligations under the Refugee Convention.
(3) Third, the SSHD is obliged as a matter of domestic law to continue to treat JS as a "refugee" unless and until he would lose the protection afforded by the Refugee Convention's own framework.
(1) Should the SSHD be permitted to withdraw any concession?
(2) Was JS granted "derivative" refugee status under the Refugee Convention?
Principles of Construction of international treaties
(1) The language itself is the starting point (per Lord Lloyd in Adan v. SSHD  1 AC 293, 303D-E).
(2) Article 31(1) of the Vienna Convention provides that a treaty must be interpreted in good faith in accordance with the ordinary meaning of the terms of the treaty in their context, and in light of its object and purpose.
(3) There is no warrant in Article 31(1) of the Vienna Convention for reading into a treaty words that are not there. It is not open to a court, when it is performing its function, to expand the limits which the language of the treaty has set for it (per Lord Steyn in R (Hoxha) v. Special Adjudicator  1 WLR 1063 at ).
(4) It is generally to be assumed that the parties included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or were unable to agree (per Lord Bingham in Brown v. Stott  1 AC 681, 703E).
"31. But it must be remembered too that, however generous and purposive its approach to interpretation may be, the court's task remains one of interpreting the document to which the contracting parties have committed themselves by their agreement. As Lord Bingham was at pains to emphasise in the Roma Rights case, at para 18, it must interpret what the parties have agreed to. It has no warrant to give effect to what they might, or in an ideal world would, have agreed. One should not overlook the fact that article 31(1) of the Vienna Convention also states that a treaty should be interpreted "in accordance with the ordinary meaning to be given to the terms of the treaty in their context". So the starting point of the construction exercise should be the text of the Convention itself: Adan v Secretary of State for the Home Department  1 AC 293 , per Lord Lloyd of Berwick at p 305; Januzi v Secretary of State for the Home Department  UKHL 5,  2 AC 426 , para 4. A treaty must be interpreted "in good faith". But this is not to be taken to be a source of obligation where none exists, as the International Court of Justice has repeatedly emphasised: In re Border and Transborder Armed Actions (second phase) (Nicaragua v Honduras)  ICJ Rep 69 , para 94; In re Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria)  ICJ Rep 175 , para 39. As a general principle of law it has only marginal value as a source of rights and duties: see the Roma Rights case, para 62. There is no want of good faith if the Convention is interpreted as meaning what it says and the contracting states decline to do something that its language does not require them to do. Everything depends on what the Convention itself provides." (emphasis added)
"18. Lord Lester urged that the Convention should be given a generous and purposive interpretation, bearing in mind its humanitarian objects and purpose clearly stated in the preamble . This is, in my opinion, a correct approach to interpretation of a convention such as this and it gains support, if support be needed, from article 31(1) of the Vienna Convention on the Law of Treaties which, reflecting principles of customary international law, requires a treaty to be interpreted in the light of its object and purpose. But I would make an important caveat. However generous and purposive its approach to interpretation, the court's task remains one of interpreting the written document to which the contracting states have committed themselves. It must interpret what they have agreed. It has no warrant to give effect to what they might, or in an ideal world would, have agreed. This would violate the rule, also expressed in article 31(1) of the Vienna Convention , that a treaty should be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context. It is also noteworthy that article 31(4) of the Vienna Convention requires a special meaning to be given to a term if it is established that the parties so intended. That rule is pertinent, first, because the Convention gives a special, defined, meaning to "refugee" and, secondly, because the parties have made plain that "refouler", whatever its wider dictionary definition, is in this context to be understood as meaning "return"."
"States the world over consistently have exhibited great reluctance to give up their sovereign right to decide which persons will, and which will not, be admitted to their territory, and given a right to settle there. They have refused to agree to international instruments which would impose on them duties to make grants of asylum.
Today, the generally accepted position would appear to be as follows: States consistently refuse to accept binding obligations to grant to persons, not their nationals, any rights to asylum in the sense of a permanent right to settle. Apart from any limitations which might be imposed by specific treaties, States have been adamant in maintaining that the question of whether or not a right of entry should be afforded to an individual, or to a group of individuals, is something which falls to each nation to resolve for itself."
JS's case on construction
"noting with satisfaction that, according to the official commentary of the ad hoc Committee on Statelessness and Related Problems (E/1618, p. 40), the rights granted to a refugee are extended to members of his family
[ ]" (emphasis added).
Ad Hoc Committee -16th January to 16th February 1950
Definition of the term "refugee"
A. For the purposes of the present Convention, the term "refugee" shall apply to
1. Any person who:
(a) [ ] has a well-founded fear of being the victim of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) Has left, or owing to such fear, is outside the country of his nationality [ ]; and
(c) Is unable or, owing to such fear, unwilling to avail himself of the protection of his nationality.
3. Any person who in the period between 4 August 1914 and 3 September 1939 was considered to be a refugee.
B. The Contracting States may agree to add to the definition "refugee" contained in this article persons in other categories recommended by the General Assembly. "
"Paragraph B [Draft Convention](*)
The Committee anticipated the possibility of extending the application of the Convention to categories of refugees other than those defined in this article. Such extension would require the agreement of the Contracting States in order to become binding upon them. The General Assembly may propose the inclusion of new categories." (emphasis added)
34th Conference of Plenipotentiaries 24th July 1951
"But resolutions and recommendations of this kind, however, sympathetic one may be towards their motivation and purpose, cannot themselves establish a legal rule binding in international law".
(1) First, the Ad Hoc Committee emphasised at the outset of its commentary on the wording of the draft Convention:
Definition of the term "Refugee"
The Committee believed the draft Convention should contain a definition of the term "refugee" in order to state unambiguously to whom the Convention would apply [and] the categories of individuals to be covered should be specified " (p.38) (emphasis added)
(2) Second, the Ad Hoc Committee's commentary on the draft of Article 1 (the wording of which is reflected in the final text of Article 1A(2)) is fully consonant with the SSHD's construction, i.e. personal not derivative fear:
"The first category
The expression "well-founded fear of being the victim of persecution for reasons of race, religion, nationality or political opinion" means that a person has been either actually a victim of persecution or can show good reason why he fears persecution." (at p.39) (emphasis added)
(3) Third, the Ad Hoc Committee's official commentary does not state "the rights granted to a refugee are extended to members of his family" as recorded in the "Noting" paragraph of Paragraph B of the Final Act. The official commentary uses language which is merely exhortatory:
"Members of the immediate family of a refugee should, in general, be considered as refugees if the head of the family is a refugee" (p.40) (emphasis added)
(4) Fourth, the Ad Hoc Committee's commentary on Paragraph B of the draft Convention (see above) makes it clear that any further categories of refugee require proposal by the General Assembly and formal agreement of the Contracting Parties:
The Committee anticipated the possibility of extending the application of the Convention to categories of refugees other than those defined in this article. Such extension would require the agreement of the Contracting States in order to become binding upon them. The General Assembly may propose the inclusion of new categories." (p. 40) (emphasis added)
"13. The Refugee Convention does not impose an obligation on Contracting States to grant leave to enter or leave to remain in order to achieve family reunion with a sponsor who has been granted refugee status in the host state, but the UN Human Rights Committee exhorts Contracting States to do this."
SSHD v. Mosira  EWCA Civ 407
"38. In accordance with Mosira, JS remains a refugee under the Refugee Convention. His mother remains a refugee; he was granted refugee status on the basis of her recognition as a refugee; the circumstances of that recognition have not changed or at least the SSHD has not established that they have changed."
"8. Both the Convention and the Immigration Rules are concerned with a permanent change of the circumstances "in connection with which [the appellant] was recognised as a refugee". We find this can only relate to his circumstances and not that of any other party; including his mother. The circumstances pertaining at the time he was granted asylum are that he was the dependant child of a person granted refugee status. By reason of age alone, there has been a permanent change as the appellant is now an adult."
"8. The Secretary of State's position before us was that the appellant has ceased to be a refugee because of the changed country conditions in Zimbabwe. She does not seek to rely on any issue regarding his age. The first point that we address is the question whether the Secretary of State is in a position to cease the treatment of Mr Mosira as a refugee for reasons that are not connected to the reasons for the original grant. The Secretary of State points to the very changed political environment in Zimbabwe and makes the comment that Mr Mosira could safely return to Zimbabwe. This would amount to the Secretary of State having begun the path of recognising him as a refugee by reference to family reunion reasons, ending that path by reference to a matter that in the circumstances of the present case is unrelated or cannot be demonstrated to be related to the original basis of recognition, namely the changed political situation in Zimbabwe.
9. With the advantage of the submissions that we have had, which admittedly in the present case proceed from the unusual and not altogether clear sight available to any of the parties or ourselves of the exact situation in 2004, we are not satisfied that it is open to the Secretary of State to proceed by way of cessation."
Court of Appeal
The Article 1A(2) point
"32. I pause here to observe that at this point it was open to the Secretary of State to seek to respond to the appeal by arguing (a) Mr Mosira was not a "refugee" as defined in Article 1A of the Refugee Convention and never had been (nor had he been recognised under para. 334 of the Immigration Rules as having refugee status), so there was no impediment arising from the Refugee Convention to his deportation to Zimbabwe and it was simply unnecessary to consider or apply Article 1C(5) of the Convention and para. 339A(v) of the Rules to remove that status; (b) alternatively, if Mr Mosira was entitled to maintain that he had refugee status attracting protection under or equivalent to that under the Refugee Convention (e.g. on the grounds that he had a legitimate expectation in domestic law to equivalent protection by reason of the grant of refugee status to him pursuant to the 2003 policy, which could entitle him to rely on the ground of appeal in section 84(1)(e) of the 2002 Act, if not on the ground in section 84(1)(g) ), he could still lawfully be deported in accordance with the Refugee Convention on the grounds of "public order" as set out in Article 32(1); and (c) there was no impediment to his deportation arising from the ECHR and the Human Rights Act 1998 . On the Secretary of State's case that Mr Mosira did not face a real risk of ill-treatment if returned to Zimbabwe, Article 33 of the Refugee Convention and section 72 of the 2002 Act were irrelevant." (emphasis added)
"46. I regard the new point, in the form it took when explained to us at the hearing, as constituting an arguable issue of law. It might have the potentially attractive consequence of meaning that it would be unnecessary to apply Article 1C(5) in circumstances where it makes little or no sense to do so, precisely because one is dealing with an individual who has never been a refugee as defined in the Refugee Convention.
47. However, I am satisfied that justice requires that we refuse permission for the Secretary of State to raise it at the eleventh hour on this appeal. It is not fair to Mr Mosira to do so. Also, in large part because of the way in which Mr Drabble was taken by surprise, we have not had the benefit of full, informed and properly researched argument on the point. Mr Drabble did his best to touch on some of the further issues which would have to be addressed if the point were introduced on the appeal but had not had a fair chance to complete his research or develop his submissions in response. Mr Malik himself made no attempt in his submissions to examine what the effect of the 2003 policy might be if this new argument were correct as a matter of interpretation of the Refugee Convention, e.g. by referring us to the domestic principles and case-law on legitimate expectations. It is neither just nor appropriate for this court to give permission for this new point to be taken by the Secretary of State. ." (emphasis added)
The Article 1C(5) point
"49. Mr Mosira was not granted refugee status by reason of the threat of ill-treatment by the authorities in Zimbabwe. Nor was his mother. Therefore, the change in the threat posed by the authorities in Zimbabwe has no bearing upon "the circumstances in connection with which [Mr Mosira] has been recognised as a refugee". He was granted refugee status under the 2003 family reunion policy, to join someone in the United Kingdom who had (and continues to have) refugee status here: those were the "circumstances in connection with which he [was] recognised as a refugee". It cannot be said that the change in the threat posed by the authorities in Zimbabwe means that those "circumstances" have ceased to exist." (emphasis added)
"20. Mr Mosira's mother was granted asylum (refugee status) in 2001 purely because of the lack of medical facilities available in Zimbabwe to treat her medical condition as HIV+: FTT decision, paras. [5(i)] and ; UT decision of August 2015, para. . As the FTT found as a fact on the available evidence, "There was no political element to the asylum granted to [her]" (). Accordingly, it was found that she was granted refugee status even though there was no determination that she met the test for a refugee under Article 1A of the Refugee Convention.
21. In September 2004 Mr Mosira applied from Zimbabwe under the 2003 policy for leave to enter as the minor child of a sponsor in the United Kingdom who had been recognised as a refugee. His application was successful, and he arrived in the United Kingdom on 27 November 2004 and was himself granted refugee status with indefinite leave to enter in accordance with para. 3.1 of the 2003 policy. As with his mother, this happened even though there was no determination that he met the test for a refugee under Article 1A of the Refugee Convention.
"6. The appellant's grant of refugee status was, in our judgement, out of the ordinary. There was no political element to the asylum granted to his mother; it turned entirely on the lack of medical facilities to treat her medical condition (HIV+) in Zimbabwe. This claim would not succeed today nor indeed would have succeeded since the [Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]/decision in N v United Kingdom. The appellant himself is not HIV+ nor, so far as we are aware, does he suffer any other related medical condition. There is no evidence to suggest the family of a person diagnosed as HIV+ would be persecuted as a result. We find no underlying features in the grant of asylum to this appellant, which relate to any persecution he has suffered or might be at risk of. " (emphasis added)
Construction of Article 1C(5)
SSHD v MM (Zimbabwe)  EWCA Civ 797
"24. [Article 1C(5)] requires examination of whether there has been a relevant change in "the circumstances in connection with which [a person] has been recognised as a refugee". The circumstances in connection with which a person has been recognised as a refugee are likely to be a combination of the general political conditions in that person's home country and some aspect of that person's personal characteristics. Accordingly, a relevant change in circumstances for the purposes of Article 1C(5) might in a particular case also arise from a combination of changes in the general political conditions in the home country and in the individual's personal characteristics, or even from a change just in the individual's personal characteristics, if that change means that he now falls outside a group likely to be persecuted by the authorities of the home state. The relevant change must in each case be durable in nature."
"33. The FTT assumed that the position under the Refugee Convention and under the ECHR would be the same. In a broad sense, that is understandable, since if MM can show that he would face a real risk of persecution upon return to Zimbabwe then he will also have shown that he would face a real risk of ill-treatment contrary to Articles 2 and 3 of the ECHR. The representative appearing for the Secretary of State in the Upper Tribunal appears to have accepted this.
34. Nonetheless, it should be noted that where an individual like MM seeks to rely on his rights under Articles 2 and 3 of the ECHR to prevent deportation the onus is on him to show that under current circumstances he would face a real risk of ill-treatment on return. The FTT, however, appears at para.  to have applied a presumption that MM would face a real risk upon return to Zimbabwe now, because the Secretary of State had accepted in 2002 that he faced such a risk. In my view, the FTT should have examined the evidence regarding the current risk faced by MM.
35. Strictly, for the purposes of analysis under Articles 2 and 3 it is not incumbent on the Secretary of State to show that the change of circumstances condition in Article 1C(5) has been satisfied. But as a practical matter one can see that the examination of current risk and the examination of whether Article 1C(5) applies in relation to a person previously recognised as a "refugee" for the purposes of the Refugee Convention will tend to run together.
36. In my view, by contrast with the position in relation to Articles 2 and 3 of the ECHR, it is correct to say that for the purposes of Article 1C(5) of the Refugee Convention the onus is on the Secretary of State to show, in relation to a person previously recognised by her as a "refugee" under Article 1A, that there has been a relevant change of circumstances such that the Refugee Convention ceases to apply to them .
37. However, in practice this difference may again have little impact, since it will usually be appropriate to expect an individual to call attention in his evidence or representations to any aspect of his particular circumstances which would tend to show that he would be subject to a real risk of ill-treatment if deported and to draw adverse inferences on the facts if he does not.
38. In so far as analysis under Articles 2 and 3 of the ECHR and analysis under Article 1A and 1C of the Refugee Convention give different answers, that may be significant. Where deportation would violate the individual's rights under Article 2 or Article 3 of the ECHR, that operates as an absolute bar to such deportation. This may not be so under the Refugee Convention, since even in the case of someone who has been recognised as a "refugee" and in relation to whom Article 1C(5) does not apply, deportation might still be allowed under that Convention if the test in Article 33(2) is satisfied. It is in that context that section 72 of the 2002 Act is relevant.''
"13. As Lord Lloyd of Berwick observed in Adan v. [SSHD]  1 AC 293, 306G, the cessation provision in article 1C(5) takes effect naturally when the refugee ceases to have a current well-founded fear. This is in symmetry with the definition in article 1A(2). The words "no longer" support that interpretation."
"UNHCR notes that as [JS] was recognised as a refugee in line with his mother's claim, who feared persecution by the Ugandan authorities for her imputed political opinion, resulting from her relationship with a member of a rebel group. . In order to discharge their burden of proof, therefore, the [Home Office] must show that the circumstances in Uganda have changed in such a way that individuals associated with rebel groups would no longer fear persecution for their imputed political opinions."
Summary on construction of Article 1C(5)
Conclusion on Ground 2 and the Main Appeal
(B) THE CROSS-APPEAL
(C) THE LINKED APPEAL
JS's judicial review proceedings
(1) Ground 1: The SSHD unlawfully failed to follow his published Family Reunion policy which included a policy to grant benefits and protections which are in form identical to those contained in the Refugee Convention.
(2) Ground 2: The SSHD has unlawfully breached the Appellant's substantive legitimate expectation that he was entitled to benefits and protections which are in form identical to those contained in the Refugee Convention.
(A) The Main Appeal should be allowed.
(B) The Cross-Appeal should be allowed.
(C) The Linked Appeal should be dismissed.
Lord Justice Newey:
Lord Justice Underhill:
UPON hearing Nicholas Chapman for the Secretary of State and Raza Husain QC, Benjamin Bundock and Eleanor Mitchell for JS
IT IS ORDERED THAT
1. The Secretary of State's appeal in C5/2018/2614 be allowed.
2. JS's cross-appeal in C5/2018/2614 be allowed and remitted to the First-tier Tribunal for redetermination according to law.
3. Permission to appeal from the decision of the Upper Tribunal in C2/2019/1244 be granted.
4. The appeal in C2/2019/1244 be dismissed.
5. On the issue of costs in respect of the Secretary of State's appeal in C5/2018/2614 and JS's appeal in C2/2019/1244, the parties file and serve written submissions within 7 days of the date of this order (following which the Court shall determine the appropriate order on the papers).
6. The Secretary of State do pay JS's costs of the cross-appeal in C5/2018/2614, to be subject to detailed assessment if not agreed.
7. There be a detailed assessment of JS's publicly funded costs.
8. Permission to appeal to the Supreme Court in C5/2018/2614 be refused.
9. Permission to appeal to the Supreme Court in C2/2019/1244 be refused.
Note 1 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [Back] Note 3 Report of the Ad Hoc Committee on Statelessness and Related Problems, Lake Success, New York, 16 January to 16 February 1950,Annex II Comments of the Committee on the draft Convention relating to the Status of Refugees. [Back]
Note 1 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [Back]
Note 3 Report of the Ad Hoc Committee on Statelessness and Related Problems, Lake Success, New York, 16 January to 16 February 1950,Annex II Comments of the Committee on the draft Convention relating to the Status of Refugees. [Back]