Cessation, Article 3 and removing refugees from the UK

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In the case of PS (cessation principles) Zimbabwe [2021] UKUT 283 (IAC), the Upper Tribunal has reiterated the correct approach to cessation of refugee status. The case is also a helpful reminder of when a serious criminal offence can and cannot lead to refugees being removed from the UK.

Background

The appellant, PS, is a Zimbabwean national. She was involved in opposition politics in Zimbabwe in the late 1990s/early 2000s, and was detained by the regime as a result. She arrived in the UK shortly after being released, in September 2002, and was granted refugee status in 2008. In 2013, she secured indefinite leave to remain.

In November 2015, PS and her husband were both convicted of manslaughter by gross negligence of the youngest of their four children, who was under a year old. PS was sentenced to eight years’ imprisonment. The other children were taken into care and PS has no contact with them. By the time of the appeal, PS suffered from persistent complex bereavement disorder and depressive disorder; and was reliant on the support of a care worker and her two siblings for her day-to-day functioning.

In September 2018, despite a UN Refugee Agency recommendation to the contrary, the Home Office ceased PS’s refugee status, refused her human rights claim to remain in the UK, and issued a deportation order.

PS appealed both against the decision to refuse her human rights claim, and against the decision to revoke her refugee status. The First-Tier Tribunal dismissed her appeal, on the basis that PS constituted a danger to the community; that her refugee status could be ceased because there had been a “durable and significant change” in the circumstances relevant to her asylum claim; and that her deportation would not breach Articles 2, 3 and 8 European Convention on Human Rights (ECHR).

On appeal, the Upper Tribunal accepted that the First-Tier Tribunal had made an error of law, and went on to make a fresh decision.

Issues

Here is where we get a helpful reminder of some Refugee Convention and ECHR basics.

Refugees recognised as such under the Refugee Convention can have their status ceased; or they can keep their refugee status but lose the rights afforded by the Refugee Convention.

Cessation can take place when the circumstances which led to a grant of refugee status have ceased to exist, and there are no other circumstances which would now give rise to a well-founded fear of persecution for reasons covered by the Refugee Convention. In theory, it can happen to any refugee, whether or not they have committed an offence. It is on the Home Office to prove that cessation applies.

Refugees who commit a serious crime can continue to meet the definition of refugees, but lose the protection of the Refugee Convention, including the protection from refoulement (that is, return to the country where they risk persecution). This is by operation of Article 33(2) of the Refugee Convention and section 72(2) of the Nationality, Immigration and Asylum Act 2002.

However, the UK can in no circumstances remove someone where removal would be a breach of Article 3 ECHR. This is because Article 3 is an absolute right. In this sense, the ECHR affords more protection than the Refugee Convention. It is on the individual to prove that removal would breach their Article 3 rights.

In this case, the Upper Tribunal maintained the finding that PS constituted a “danger to the community” for the purposes of section 72(2) of the 2002 Act and Article 33(2) of the Refugee Convention. So even if PS were still in need of protection and met the definition of refugee under the Convention, she could still be “refouled”: that is, sent back to Zimbabwe.

The main issues to decide were

Whether the correct legal approach was used to cease PS’s refugee status. This fell on the Secretary of State to prove.
Whether removing PS to Zimbabwe would breach her Article 3 rights. This fell on her to prove.

Again, the second issue was important because of section 72: PS was found to constitute a danger to the community so that, even if it were found that the cessation was unlawful, she could still be removed. Article 3, however, is absolute; if removing PS to Zimbabwe were a breach of her Article 3 rights, then she could not be removed.

Correct approach to cessation

The headnote of the case, quoted in full below, is self-explanatory on the cessation issue.

The official headnote

1. The correct approach to cessation in Article 1(C) of the Refugee Convention, Article 11 of the Qualification Directive 2004/83 and paragraph 339A of the Immigration Rules can be summarised as follows:

(i) There is a requirement of symmetry between the grant and cessation of refugee status because the cessation decision is the mirror image of a decision determining refugee status i.e. the grounds for cessation do not go beyond verifying whether the grounds for recognition of refugee status continue to exist – see Abdulla v Bundesrepublik Deutschland (Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08) [2011] QB 46 at [89] and SSHD v MA (Somalia) [2019] EWCA Civ 994, [2018] Imm AR 1273 at [2] and [46].

(ii) “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 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 she 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 and the burden is upon the respondent to prove it – see Abdulla at [76] and SSHD v MM (Zimbabwe) [2017] EWCA Civ 797, [2017] 4 WLR 132 at [24] and [36].

(iii) The reference in the Qualification Directive (as replicated in paragraph 339A) to a “change in circumstances of such a significant and non-temporary nature” will have occurred when the factors which formed the basis of the refugee’s fear of persecution have been “permanently eradicated” – see Abdulla at [73] wherein it was pointed out that not only must the relevant circumstances have ceased to exist but that the individual has no other reason to fear being persecuted.

(iv) The relevant test is not change in circumstances, but whether circumstances in which status was granted have “ceased to exist” and this involves a wider examination – see SSHD v KN (DRC) [2019] EWCA Civ 1655 at [33].

(v) The views of the UNHCR are of considerable importance – HK (Iraq) v SSHD [2017] EWCA Civ 1871 at [41], but can be departed from.

2. It is therefore for the SSHD to demonstrate that the circumstances which justified the grant of refugee status have ceased to exist and that there are no other circumstances which would now give rise to a well-founded fear of persecution for reasons covered by the Refugee Convention. The focus of the assessment must be on: (i) the personal circumstances and relevant country background evidence including the country guidance (‘CG’) case-law appertaining at the time that refugee status was granted and; (ii) the current personal circumstances together with the current country background evidence including the applicable CG.

Applying the country guidance of CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) to the appellant’s case, the Upper Tribunal found that she would still be at risk in Zimbabwe. Therefore the Home Office had not shown that the circumstances which led to her grant of asylum had ceased to exist. In other words, she continued to be a refugee.

Article 3

PS could still have been removed from the UK as a danger to the community, as outlined above. But the Upper Tribunal found that removing her to Zimbabwe would be a breach of her Article 3 rights.

That was because she would be at risk of ill-treatment by the authorities at the airport; and even if she escaped that, her mental health would subsequently degrade to the point of resulting in a serious, rapid and irreversible decline in her health resulting in intense suffering.

It is likely that the symptoms associated with her depression and bereavement disorder will worsen and intensify within a short period of her arrival in Harare to the extent that it will break her mental and physical resolve. Her low mood, anxiety and paranoia are likely to significantly worsen given her past ill-treatment in Harare and the absence of any meaningful support. Her irrational thoughts / pseudo hallucinations regarding her children are likely to increase in intensity. Her suicide ideation is likely to significantly increase and her current moderate suicide risk is likely to become more severe. She will not have any support to assist her to manage this significant worsening of her mental health.

This, rather than her refugee status, is what saves PS from removal.