In Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994 the Court of Appeal grappled with the thorny question of what issues are relevant when a decision-maker is assessing the cessation of refugee status under the Qualification Directive.

Article 11(1)(e) of the directive states that

A third country national…shall cease to be a refugee, if he or she… can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality.

Article 11(2) of the Directive provides that the change of circumstances must be “of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well founded”.

Cessation of refugee protection for Somali ethnic minority

MA is a Somali national from Mogadishu who came to the UK and claimed asylum in 2004. He was granted refugee status on the basis of his membership of a minority clan (the Reer Hamar).

In 2015, due to MA’s criminality (which was later deemed irrelevant to the cessation issue), the Secretary of State made a deportation order and took the decision to cease MA’s refugee protection. Relying on MOJ and others (Return to Mogadishu) (CG) [2014] UKUT 442 (IAC), she took the view that MA would no longer be at risk of persecution on account of his Reer Hamar ethnicity.

The First-tier Tribunal allowed MA’s appeal on the basis that, if he were to be returned to Somalia, it was likely he would have to live in conditions that fell below acceptable humanitarian standards and thus cessation could not be justified. The Secretary of State appealed to the Upper Tribunal, which held that there was no error of law in the First-tier Tribunal decision.

Review of the law on cessation decisions

The Court of Appeal reviewed the UNHCR guidelines on the ceased circumstances clauses, as well as the Court of Justice of the European Union decision in joined cases C-175/08, C-176/08, C-178/08, C0179/08 Abdulla and others v Bundesrepublik Deutschland.

Lady Justice Arden concluded that:

A cessation decision is the mirror image of a decision determining refugee status. By that I mean that the grounds for cessation do not go beyond verifying whether the grounds for recognition of refugee status continue to exist. Thus, the relevant question is whether there has been a significant and non-temporary change in circumstances so that the circumstances which caused the person to be a refugee have ceased to apply and there is no other basis on which he would be held to be a refugee.

She further stated “there is no necessary reason why refugee status should be continued beyond the time when the refugee is subject to the persecution which entitled him to refugee status or any other persecution which would result in him being a refugee, or why he should be entitled to further protection. There should simply be a requirement for symmetry between the grant and cessation of refugee status”.

The risk that states which were obliged to grant refugee status under international law would seek to escape from their obligations too readily was acknowledged, as was the need to protect refugees. The court noted that the Qualification Directive does not refer to changes in circumstances being “durable” (the phrase used in Refugee Convention jurisprudence) but to their being “non-temporary”. The judgment also points out that this was interpreted robustly in Abdulla: “the change of circumstances will be of a ‘significant and non-temporary’ nature, within the terms of article 11(2) of the Directive, when the factors which formed the basis of the refugee’s fear of persecution may be regarded as having been permanently eradicated…”

Humanitarian standards are not in play

In relation to the more general human rights and humanitarian issues that MA argued should be considered, the Court of Appeal was not persuaded. MA had argued that without sufficient judicial protection for human rights, cessation was not appropriate. MA also argued (in support of the First-tier Tribunal decision) that the country of origin should ensure basic living standards for the returning refugee before cessation could be invoked.

The court held that, despite references in the directive to ensuring full respect for human dignity, that the CJEU in Abdulla did not go down that path. Lady Justice Arden stated very clearly that “humanitarian standards are not the test for a cessation decision”.

It was acknowledged that the UNHCR guidelines appear to go further than the directive and the decision in Abdulla. But the court decided that the decision of the CJEU must prevail.

This led to the following conclusion:

it must follow from the analysis of the CJEU in Abdulla that the recognising state does not have to investigate whether there would be an Article 3 violation if the refugee was returned to his country of origin. That would have to be considered, but as an independent matter.

Ultimately the court remitted MA’s case to the First-tier Tribunal to apply the law correctly.

A correct and logical decision

This may initially appear a harsh decision, particularly if one factors in the unhelpful obiter comments stating that Article 3 is not normally violated by sending a refugee back to his country of origin where there is a risk that his living conditions will fall below humanitarian standards.

On closer analysis, it can be seen as a clearly correct and logical decision. “A cessation decision is the mirror image of a decision determining refugee status” is a simple statement of the law. More important are the safeguards, such as the emphasis that the factors which formed the basis of the refugee’s fear of persecution must be “permanently eradicated”. Also, although Article 3 and humanitarian considerations are not part of the cessation decision-making process, these are matters which must be considered separately as part of any protection or human rights appeal.