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Immigration judges told how to handle Somalian refugee cessation cases
Credit: AMISOM Public Information on Flickr

Immigration judges told how to handle Somalian refugee cessation cases

The Upper Tribunal has provided guidance on how First-tier Tribunal judges should approach attempts by the Home Office to revoke refugee status from Somalian nationals. SB (refugee revocation; IDP camps) Somalia [2019] UKUT 358 (IAC) confirms that it is, in principle, possible to revoke refugee status because internal relocation is now available to the refugee. This is a particularly important issue for Somalian refugees because many still face the risk of persecution in their home area but may now be able to safely relocate to Mogadishu.

SB is a refugee from Somalia. He came to the United Kingdom in 1990 when he was 13 years old and was recognised as a refugee. Unfortunately, some years later he developed an addiction to gambling. To fund this addiction he fraudulently took driving tests on behalf of other people. SB was sentenced to 18 months in prison, which triggered an attempt by the Home Office to revoke his refugee status and deport him to Somalia. His appeal against that decision succeeded in the First-tier Tribunal.

In Secretary of State for the Home Department v MS (Somalia) [2019] EWCA Civ 1345, the Court of Appeal recently ruled that it is permissible to revoke refugee status because it is now safe for a refugee to internally relocate within their country of origin. That is so even if the original threat of persecution still exists elsewhere in the country.

SB argued that the Upper Tribunal was not bound to follow this decision because the issue was conceded by counsel for MS. The tribunal rejected this argument:

The fact that a legal issue may be conceded before a court does not, in any sense, affect the fact that, if that issue is, or forms part of, the ratio of the resulting judgment of the court, the matter has been authoritatively decided by that court. If, applying ordinary principles of stare decisis , the judgment would be binding on a lower court or tribunal, the fact that the concession was made will be immaterial… We accept that the making of such a concession might in practice mean the court is not presented with the full range of authorities, including those that might be binding upon it, with the result that there is a risk of the resulting judgment being per incuriam. But that is not the position here.

The tribunal then went on to consider the appropriate way to assess whether relocation to Mogadishu is safe for Somalian refugees. The Upper Tribunal noted that, although there is clear authority that living in an Internally Displaced Persons camp in Mogadishu would no longer automatically amount to a breach of Article 3, the Home Office would still have to demonstrate that internal relocation was reasonable:

The decision on revocation of refugee status will need to be re-made on the basis that it will be for the Secretary of State to persuade the fact-finding tribunal that, on all the current evidence before it, there has been a “significant and non-temporary” change, such as to make it reasonable – having regard to all the relevant factors – the claimant could reasonably and without due harshness be expected to relocate to Mogadishu. As we have seen, a real risk of Article 2 or 3 harm in Mogadishu will make it unreasonable for the claimant to relocate there; but a negative finding on that issue will not be determinative of the issue of reasonableness/undue harshness, which must be addressed in the way described in Januzi and AH (Sudan) .

SB’s case was remitted to the First-tier Tribunal for the necessary fact-finding to be carried out. 

The official headnote

(1) In Secretary of State for the Home Department v MS (Somalia) [2019] EWCA Civ 1345, the Court of Appeal has authoritatively decided that refugee status can be revoked on the basis that the refugee now has the ability to relocate internally within the country of their nationality or former habitual residence. The authoritative status of the Court of Appeal’s judgments in MS (Somalia) is not affected by the fact that counsel for MS conceded that internal relocation could in principle lead to cessation of refugee status. There is also nothing in the House of Lords’ opinions in R (Hoxha) v Special Adjudicator and Another [2005] UKHL 19 that compels a contrary conclusion to that reached by the Court of Appeal.

(2) The conclusion of the Court of Appeal in Secretary of State for the Home Department v Said [2016] EWCA Civ 442 was that the country guidance in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) did not include any finding that a person who finds themselves in an IDP camp is thereby likely to face Article 3 ECHR harm (having regard to the high threshold established by D v United Kingdom (1997) 24 EHRR 43 and N v United Kingdom (2008) 47 EHRR 39). Although that conclusion may have been obiter, it was confirmed by Hamblen LJ in MS (Somalia). There is nothing in the country guidance in AA and Others (conflict; humanitarian crisis; returnees; FGM) Somalia [2011] UKUT 445 (IAC) that requires a different view to be taken of the position of such a person. It will be an error of law for a judge to refuse to follow the Court of Appeal’s conclusion on this issue.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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