In Secretary of State for the Home Department v MS (Somalia) [2019] EWCA Civ 1345, the Court of Appeal has held that the Home Office can cease refugee status where there has been a change of circumstances in the refugee’s country of origin such that it is possible for them to internally relocate to avoid persecution.

MS is from Somalia and had been granted asylum in the United Kingdom. After he committed a series of criminal offences the Home Office decided to cease his refugee status in order to deport him to Somalia.

Officials accepted that MS would still face persecution if he returned to his home in southern Somalia, but claimed that Mogadishu was now safe enough for him to internally relocate there and avoid persecution.

Both the First-tier Tribunal and the Upper Tribunal ruled that, as a matter of principle, the Refugee Convention does not permit the cessation of refugee status on the basis of a new internal flight option. They took the view that refugee status could only be brought to an end if there was a change in circumstances which meant the original threat of persecution no longer existed. In doing so they were following paragraph 17 of the relevant UNHCR guidelines:

The 1951 Convention does not preclude cessation declarations for distinct sub-groups of a general refugee population from a specific country, for instance, for refugees fleeing a particular regime but not for those fleeing after that regime was deposed. In contrast, changes in the refugee’s country of origin affecting only part of the territory should not, in principle, lead to cessation of refugee status. Refugee status can only come to an end if the basis for persecution is removed without the precondition that the refugee has to return to specific safe parts of the country in order to be free from persecution [emphasis added].

Lord Justice Hamblen disagreed. He preferred a “mirror image approach”: when considering whether it was lawful to make a cessation decision, the First-tier Tribunal should consider the same issues as if it were considering an initial refusal of refugee status. The judge noted that while he was probably bound to take this course by earlier Court of Appeal authority, this conclusion was also consistent with the relevant international and EU law instruments:

In my judgment, this Court should follow the mirror image approach endorsed in MA (Somalia), if and in so far as it is not bound so to do. It should do so for the reasons set out in MA (Somalia) and, in particular, because it reflects the language of Article 1C(5) of the Convention and Article 11 of the Qualification Directive, which link cessation with the continued existence of the circumstances which led to the recognition of refugee status. It is also consistent with the approach of the CJEU in Abdulla.

Mirror image approach is a bit misleading, because Hamblen LJ then immediately explains that cessation decisions take a stricter approach to the availability of internal relocation than the initial grant of refugee status:

As the House of Lords made clear in Hoxha, the mirror image approach is subject to the qualification that the requisite “strict” and “restrictive” approach to cessation clauses means that it must be shown that the change in circumstances is fundamental and durable – in the equivalent wording of the Qualification Directive, “significant” and “non-temporary”. In addition, the burden of proof on all issues will be on the SSHD.

The result is unfortunate for MS, who also lost on two other grounds and will now have to start again at the First-tier Tribunal.

The Court of Appeal’s decision to contradict with the UNHCR guidelines is unusual and appears to be based on a strongly felt disagreement. Underhill LJ even went so as far as to issue a separate judgment criticising the reasoning of the UNHCR and emphasising the fairness of applying the same criteria in both situations.

It is difficult to attack the logic of applying the same criteria, but cessation solely on the ground of a new internal relocation option is very harsh. Since the principle of internal relocation does not appear in the text of the Refugee Convention, it would have been better to interpret the cessation clause restrictively so it applies only where the fear of persecution itself has disappeared.