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Refugees’ dependants can be sent packing if country of origin circumstances have changed


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A grant of refugee status usually involves acceptance that a particular set of circumstances exist which would make it unlawful for a person to be returned to their country of origin. But circumstances change, and this can have a knock-on effect on whether someone continues to qualify as a refugee.

Article 1C(5) of the Refugee Convention and paragraph 339A(v) of the Immigration Rules allow the Home Office to cease refugee status if the circumstances in which that person was recognised as a refugee are no longer applicable. But what if the person granted refugee status was only a dependant and it was their parents who were fleeing persecution?

This was the issue in Secretary of State for the Home Department v KN (DRC) [2019] EWCA Civ 1665. The Court of Appeal found that someone granted refugee status as a dependant can have that status revoked if the circumstances which led to the grant cease to apply.

Refugee status revoked for criminal offending

KN came to the UK aged nine. He and his whole family were recognised as refugees in 1994 because of the father’s political activity in the Democratic Republic of Congo.

Between 2001 and 2012, KN was convicted of various crimes, culminating in a conviction for conspiracy to rob in June 2012, for which he received four and a half years’ imprisonment.

[ebook 17797]

The Home Office sought to remove KN under section 72 of the Nationality, Immigration and Asylum Act 2002, which established a statutory presumption that he was a danger to the community because of his offending.

In what is an all too common tactic in cases of refugees committing crimes, the Home Office also sent him a cessation letter. This asserted that “the circumstances surrounding his initial claim for asylum no longer existed as there had been ‘a fundamental and durable change’ in the situation in the DRC since it was granted”. KN appealed against both decisions.

Successful tribunal appeals

The First-tier Tribunal held that KN had rebutted the section 72 presumption, and that his refugee status could not be ceased. The Home Office appealed on the latter finding only.

The Upper Tribunal also backed KN on the cessation decision. It found that he had not been recognised as a refugee in his own right but “because his parents were recognised as refugees”. Therefore, “any political changes in the DRC had no bearing on the circumstances in connection with which he had been recognised as a refugee”.

Nature of a cessation decision

The Court of Appeal approached matters differently. It found that Article 1C(5) and paragraph 339A(v):

do not authorise the revocation of a refugee’s status merely if the grounds on which the respondent was granted that status have changed but, rather, where “the circumstances in connection with which he has been recognised as a refugee have ceased to exist”. As acknowledged by this court in MM (Zimbabwe), this involves a wider examination.

In line with MM (Zimbabwe), the onus of proving that certain circumstances have ceased to exist lies on the Secretary of State. In this case, it was to show that the circumstances 25 years ago did not apply now and there were not other circumstances which would give rise to a fear of persecution for reasons covered by the Refugee Convention.

Lord Justice Baker added: 

It is unclear from the information provided to this court whether or not the respondent would himself have a well-founded fear of ill-treatment so to satisfy Article 1A(2). It is clear, however, that his father passed that test. His father’s persecution by the regime in DRC, and well-founded fear of further prosecution were he to be returned to that country, were manifestly part of the circumstances in connection with which the respondent himself was recognised as a refugee.

The result in KN’s case was that the matter was remitted to the Upper Tribunal for full consideration of whether the circumstances that applied 25 years ago had in fact ceased to exist, and whether there was any other barrier to KN’s removal. 

A two-step process

On one view, the result here means the Secretary of State has to jump two consecutive hurdles in cessation cases:

  1. showing that the circumstances which led to the refugee status cease to apply, AND
  2. showing that no other circumstances apply which would lead to contravention of the Refugee Convention.

But whilst the Home Office will probably spend a bit more effort jumping over the first hurdle, I think it’s almost inevitable that officials will try and find a shortcut for the second hurdle. No doubt like in current decision letters, we’ll see some cut-and-paste wording about how a person’s current circumstances have been considered but still don’t justify continuation of refugee status. 

A client in this situation may not have a clue on what basis their family members were granted refugee status. This might mean doing some digging around and perhaps submitting a Subject Access Request and speaking to their family members who were granted refugee status. Given the rapidity with which appeals are now being listed in the tribunal, a lot of this work may need to be pre-empted at the stage where the person has an opportunity to make representations before the granting of any deportation order. 

Further reading: Relatives of refugees are not legally refugees after all.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.