“This is a case in which the legal analysis proposed by the Secretary of State became confused at an early stage and was never reviewed and rectified. It also became procedurally very messy”, so said the Court of Appeal in The Secretary of State for the Home Department v Mosira  EWCA Civ 407 (08 June 2017).
By not paying proper regard to fundamentals so as to advance a tactful and relevant legal analysis approach from the very start, stemming from the very decision to cease refugee status, the Secretary of State woefully missed out on an opportunity to deport a Zimbabwean national who had never been granted refugee status but rather was conferred it on a technicality for the purposes of family re-unification.
The Secretary of State doggedly took a not very insightful approach until it was too late. By the time those representing the Secretary of State of State had woken up to the true significance of the legal arguments they had missed out, the Court of Appeal would have none of it: “This argument did not emerge as a distinct point either in the grounds of appeal or in Mr Malik’s original skeleton argument……It is a complete departure from the way in which the Secretary of State had put her case at every stage before the Tribunal. It took Mr Drabble QC for Mr Mosira by surprise….. Mr Malik did not apply to this Court, either in advance of the hearing or at the hearing itself, for permission to withdraw the concession made below that the case turns upon application of Article 1C(5) and para. 339A(v) of the Immigration Rules; to amend the grounds of appeal; or for permission to rely upon a revised skeleton argument introducing this new point. We heard Mr Malik introduce the argument de bene esse, without prejudice to Mr Drabble’s right to object to it. 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”.
Mr Mosira, a citizen of Zimbabwe, came to the UK at the age of 17 in 2004 pursuant to the Secretary of State’s family reunion policy promulgated in 2003 to join his mother, who had previously been granted refugee status to stay in the United Kingdom. Under the 2003 policy, Mr Mosira was himself granted refugee status by the Secretary of State. Mr Mosira’s mother had however been granted refugee status in 2001 purely because of the lack of medical facilities available in Zimbabwe to treat her medical condition, HIV.
Mr Mosira qualified as a “foreign criminal” for the purposes of section 32 of the UK Borders Act 2007 having been convicted of two counts of sexual activity with a girl less than 16 years old, who had been aged 13 at the relevant time. He was sentenced to concurrent terms of imprisonment for 3 years. The Secretary of State indicated that she intended to make an order to deport Mr Mosira back to Zimbabwe when he was released. She purported to give notice of cessation of his refugee status.
By a decision dated 27 February 2014, the Secretary of State explained that the circumstances which led to a grant of asylum status to Mr Mosira had been reviewed and it was considered that they had fundamentally and durably changed for the purposes of Article 1C of the Refugee Convention and Paragraph 339A(v) of the Immigration Rules by reason of improvements in the political situation in Zimbabwe; and that in the Secretary of State’s view, Mr Mosira, as per his claim, did not have a sufficient profile as a supporter of the MDC to face a real risk of persecution for the purposes of the Refugee Convention or a real risk of violation of his Convention rights under Articles 2 and 3 of the ECHR. According to the Secretary of State, the objective evidence set out in her letter of 28 November 2013 demonstrated that Mr Mosira’s fear of persecution was no longer applicable on the basis that there had been a fundamental and non-temporary change in Zimbabwe. The Secretary of State relied on her decision of 27 February 2014 to revoke Mr Mosira’s refugee status.
An appeal was mounted to the Tribunal by Mr Mosira.
Basis upon which the Upper Tribunal allowed Mr Mosira’s appeal
Mr Mosira’s appeal reached the Upper Tribunal who allowed his appeal, holding that it had not been open to the Secretary of State to withdraw Mr Mosira’s refugee status in the way she did and, in view of the low risk to the public now presented by Mr Mosira, it held that there was no sufficient public interest in deportation to justify his removal for the purposes of the 1951 Refugee Convention.
The Upper Tribunal held that it had not been open to the Secretary of State to proceed by way of cessation of Mr Mosira’s refugee status. This was because the changes in circumstances in Zimbabwe had nothing to do with the original basis on which Mr Mosira was granted refugee status, as a child family member of someone in the United Kingdom who had been granted refugee status. Since the Upper Tribunal considered that Mr Mosira should be regarded as a refugee, the Upper Tribunal proceeded to consider whether he could be deported, consistently with the terms of the Refugee Convention. The only argument presented about removal of a refugee appeared to have been by reference to Article 33(2) of the Refugee Convention and Section 72 of the 2002 Act.
The Upper Tribunal heard oral evidence from Mr Mosira. It also reviewed two reports from Mr Mosira’s probation officer which indicated that his risk of re-offending was assessed to be low and had fallen significantly by the time of the hearing. The Upper Tribunal held that on the available evidence Mr Mosira had rebutted the presumption in section 72(2) that he constituted a danger to the community.
The Upper Tribunal also arrived at the conclusion that Mr Mosira was a person with refugee status for the purposes of the Refugee Convention and that his removal to Zimbabwe could not be justified according to the test set out in Article 33(2) of the Refugee Convention.
The Secretary of State appealed the Upper Tribunal decision to the Court of Appeal.
The provisions of the Refugee Convention that were applied to Mr Mosira’s case
Article 32 (Expulsion) of the Refugee Convention provides that the Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
Article 33- Prohibition of Expulsion or Return (‘Refoulement’), provides that (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 and (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.
Section 72 of the Nationality, Immigration and Asylum Act 2002, has made provision in relation to the construction and application of Article 33(2) of the Refugee Convention. Section 72(2) and provides:
“A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is-
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least two years.”
Sub-section (6) provides:
“A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.”
Observations made by the Court of Appeal
The Court of Appeal made the following observations:
The Immigration Rules make provision for the grant of asylum or what is termed “refugee status” in paragraph 334. As paragraph 334 currently stands, it seems that it does not apply to a person given leave to enter on the basis of family reunion rules.
On a proper analysis, since Mr Mosira was only granted refugee status under the 2003 policy for family reunion, it seemed that he was not granted such status under paragraph 334 of the Immigration Rules. The Court of Appeal observed that this was not a point appreciated or articulated by the representatives for the Secretary of State in presenting her case at any stage.
Paragraph 338A of the Immigration Rules in their current form state that “A person’s grant of refugee status under paragraph 334 shall be revoked or not renewed if any of paragraphs 339A to 339AB apply”. Paragraph 339A of the Immigration Rules in their current form makes provision for when the Refugee Convention shall be taken to cease to apply. It reflects Article 1C of that Convention. It provides in relevant part that it applies: “when the Secretary of State is satisfied that … (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;… In considering (v) …, the Secretary of State 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.”
The Secretary of State at each stage had assumed that this provision applied in relation to Mr Mosira. However, it seemed doubtful that it did, because he was not granted refugee status under paragraph 334 of the Rules.
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.
Mr Mosira was given leave to enter and was accorded “refugee status” in 2004 pursuant to the 2003 policy governing applications made by family members who wanted to be reunited with a person in the UK who had been “recognised as a refugee”, as Mr Mosira’s mother had been.
The 2003 policy was replaced in 2007 with some new Immigration Rules dealing with family reunion. Under the new Rules, a family member of a person with refugee status shall be granted leave to enter, but will not himself be accorded refugee status.
Mr Mosira’s mother was granted refugee status in 2001 purely because of the lack of medical facilities available in Zimbabwe to treat her medical condition, HIV. There was no political element to the asylum granted to her. 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
Although the Secretary of State had previously invited Mr Mosira to make representations to rebut the presumption in section 72(2) of the 2002 Act that he constitutes a danger to the community of the United Kingdom, the Court of Appeal noted that at that stage, it seemed the Secretary of State thought that Mr Mosira might be able to bring himself within the scope of Article 33(1) of the Refugee Convention by reason of the risk of ill-treatment he would face upon return to Zimbabwe – hence the relevance of Article 33(2) and section 72.
The Court of Appeal noted that the Secretary of State gave notification to Mr Mosira of her intention to cease his refugee status pursuant to Article 1C of the Refugee Convention and paragraph 339A of the Immigration Rules and inviting representations from him. The Court of Appeal observed that since Mr Mosira had not been granted refugee status pursuant to paragraph 334 of the Immigration Rules and had not up till this point been recognised by the Secretary of State as someone who met the definition of a “refugee” in Article 1A of the Refugee Convention, it was open to doubt whether this was an appropriate procedural step for the Secretary of State to take.
What the Court of Appeal said the Secretary of State should have done
The Court of Appeal observed further as below:
It was open to the Secretary of State to seek to respond to the appeal by arguing that 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 paragraph 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 paragraph 339A(v) of the Rules to remove that status.
Alternatively, if Mr Mosira was entitled to maintain that he had refugee status attracting protection under or equivalent to that under the Refugee Convention, 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).
The Secretary of State could have argued that 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.
If, on the other hand, Mr Mosira showed on the appeal that he would be at real risk of ill-treatment if deported to Zimbabwe, he would be entitled to succeed in his appeal on the grounds that deportation to Zimbabwe would violate his rights under Article 2 or Article 3 of the ECHR, whatever the position under the Refugee Convention might be. He would also be entitled to succeed on the basis of the Refugee Convention on the grounds of the same risk of ill-treatment, provided that the Secretary of State could not rely on Article 33(2), with the Secretary of State having the benefit of the presumption in section 72 in that regard.
The Court of Appeal observed that when the Upper Tribunal directed that the decision should be re-made by the Upper Tribunal, it indicated at the hearing that the issue of change of circumstances by reason of becoming an adult should be addressed, as well as these other issues such as :”(i) In what circumstances may it be appropriate to revoke the refugee status of an individual who has become a refugee only by virtue of being the child of a person recognised as a refugee? (ii) In the present case, what is the relevance of the fact that the appellant’s mother was granted refugee status only on account of the fact that she was HIV positive? (iii) What is the relevance of the desirability of an individual’s integration in the host nation and/or his or her own family and the question of cessation of refugee status?”
The Court of Appeal observed that the above were sensible questions to raise and that it might have been hoped that they would have led to those acting for the Secretary of State to re-assess the proper analysis of the issues in the case, however, that did not occur. Instead, the Secretary of State continued to focus on whether it had been open to her to cease to treat Mr Mosira as a refugee by virtue of application of Article 1C(5) and paragraph 339A(v). The Secretary of State was noted to have expressly accepted that Mr Mosira was to be treated as a refugee for the purposes of the Refugee Convention.
The Court of Appeal’s conclusions
The Court of Appeal concluded as below:
In his appeal, Mr Mosira was entitled to argue that his removal from the United Kingdom “would breach the United Kingdom’s obligations under the Refugee Convention”, which is what he did argue.
On his appeal to the Tribunal he was entitled to an assessment by the Tribunal of whether his removal would in fact breach the relevant obligations under the Refugee Convention, having regard to evidence heard and facts found by the Tribunal.
The Tribunal only reviewed the legality of the Secretary of State’s cessation decision in the sense that the Secretary of State advanced the reasons given in that decision as reasons why the Tribunal should come to the same conclusion as her, namely that the deportation of Mr Mosira would not infringe the United Kingdom’s obligations under the Refugee Convention. The Tribunal did not exceed its jurisdiction in examining the case presented by Mr Mosira.
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 had no bearing upon the circumstances in connection with which Mr Mosira had 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 could not be said that the change in the threat posed by the authorities in Zimbabwe meant that those “circumstances” had ceased to exist.
Although the Secretary of State could have sought to argue in the Tribunal that, even on the footing that Mr Mosira was to be regarded as a refugee, his expulsion to Zimbabwe (where he did not face a real risk of ill-treatment) could be regarded as consistent with the United Kingdom’s obligations under the Refugee Convention if it was on grounds of “public order” within Article 32(1) – a potentially wider category of case than that contemplated by Article 33(2) – she did not put her case in that way. Instead, she chose to argue that Mr Mosira’s expulsion/removal was justified for public order type grounds only because she could show that she could meet the test in Article 33(2). It was only in that context that her reliance on section 72 of the 2002 Act made sense. Since the Secretary of State chose to put her public order case in this way, she could not complain if the Upper Tribunal examined it on its merits. She presented no public order argument apart from this.
Upon examination of the case presented by the Secretary of State, the Upper Tribunal found that she had failed to make it out. It found that Mr Mosira had rebutted the presumption that he represented a danger to the community under section 72(2), as he was entitled to seek to do. The Upper Tribunal had material before it on which it was lawfully entitled to come to the conclusion it did: its own assessment of Mr Mosira in giving evidence to the Upper Tribunal, the reports from his probation officer and the findings regarding remorse and reduction of risk also made by the First Tier Tribunal.
The Secretary of State’s appeal was therefore dismissed.