The Home Office has been criticised by the Court of Appeal for its “confused” and “messy” legal analysis in the matter of Secretary of State for the Home Department v Mosira [2017] EWCA Civ 407. The Secretary of State sought to apply refugee cessation provisions to a non-refugee deportee; rigidly sticking to its increasingly untenable position throughout the proceedings. The individual – a Zimbabwean national – had never in fact been granted refugee status but was bestowed it on a technicality for the purposes of family re-unification. By the time the Secretary of State had realised her errors, it was too late as far as the Court of Appeal was concerned; her appeal was accordingly dismissed.

Background

Mr Mosira entered the UK in 2004 (aged 17) in order to join his mother, pursuant to the Secretary of State’s family reunion policy promulgated in 2003. Mr Mosira’s mother had herself been granted refugee status to stay in the UK, specifically due to the lack of available medical facilities in Zimbabwe to treat her HIV. The effect of the 2003 policy, however, was that Mr Mosira was also conferred with refugee status, albeit solely on account of his mother. He was not granted refugee status under paragraph 334 of the Immigration Rules.

In 2012, Mr Mosira was convicted on two counts of sexual activity with a girl less than 16 years old. Mr Mosira was sentenced to concurrent terms of imprisonment for 3 years, rendering him a “foreign criminal” for the purposes of section 32 of the UK Borders Act 2007.

The Secretary of State gave notice 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 pursuant to Article 1C of the Refugee Convention, and paragraph 339A of the Immigration Rules. Paragraph 339A of the Immigration Rules (which mirrors Article 1C of the Refugee Convention), sets out one of the conditions where a person’s refugee status under paragraph 334 shall be revoked or renewed.

Article 1C provides in relevant part the following:

This Convention shall cease to apply to any person falling under the terms of section A if

…

(5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality…

Since Mr Mosira had not been granted refugee status pursuant to para. 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 “refugee” under the Refugee Convention, it was “open to doubt” as to whether giving notice of cessation was an appropriate step for the Secretary of State to take [27].

In any event, and following written submissions regarding Mr Mosira’s risk of ill-treatment on return to Zimbabwe, the Secretary of State:

1. considered that the circumstances in Zimbabwe had improved in recent years such that Mr Mosira could safely return there;
2. revoked Mr Mosira’s refugee status; and
3. finalised her decision to make a deportation order, after satisfying herself that none of the exceptions under section 33 of the UK Borders Act 2007 applied.

Mr Mosira appealed to the First Tier Tribunal.

The Court of Appeal laments how at this point it was:

…open to the Secretary of State to seek to respond to the appeal by arguing (a) 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 para. 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 para.339A (v) of the Rules to remove that status; (b) alternatively, if Mr Mosira was entitled to maintain that he had refugee status attracting protection under or equivalent to that under the Refugee Convention (e.g. on the grounds that he had a legitimate expectation in domestic law to equivalent protection by reason of the grant of refugee status to him pursuant to the 2003 policy… he could still lawfully be deported in accordance with the Refugee Convention on grounds of “public order” as set out in Article 32(1); and (c) there was no impediment to his deportation arising from the ECHR and the Human Rights Act 1998. [32]

…

Unfortunately, the Secretary of State did not present her case on the appeal in line with this analysis. Instead, some confusion arose.

The First Tier Tribunal was asked to decide whether the Secretary of State was entitled to cease to recognise Mr Mosira as a refugee by virtue of the application of Article 1C(5) of the Refugee Convention and para. 339A of the Immigration Rules. Of its own accord, the FTT found that the Secretary of State had been entitled so to decide by virtue of the fact that Mr Mosira was granted asylum as the dependent child of a person granted refugee status, and there had been a permanent change in that regard because he was now an adult. Accordingly, his appeal was dismissed.

No opportunity to respond to case put forward by Secretary of State

On appeal by Mr Mosira, the Upper Tribunal recognised that Mr Mosira had not been given an opportunity to respond to any case put forward by the Secretary of State in respect of revocation on the basis that he is now an adult, and considered it wrong that the FTT had raised the issue itself where Mr Mosira had not been afforded such an opportunity. The Upper Tribunal directed that the decision should be re-made by the Upper Tribunal, and indicated that the issue of change of circumstances by reason of becoming an adult should be addressed.

In the event, 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. 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. [38]

The Secretary of State appealed to the Court of Appeal, taking four points:

(a) that the Upper Tribunal misunderstood the scope of its appellate jurisdiction, in that it erred in law in adjudicating on the legality of the Secretary of State’s decision to cease to treat Mr Mosira as having refugee status;

(b) that the Upper Tribunal erred in law in holding that the cessation of Mr Mosira’s refugee status was unlawful;

(c) that the Upper Tribunal erred in law in assuming Mr Mosira ought to be treated as a refugee in absence of a lawful cessation of his refugee status even in the circumstances where there is no current risk of persecution or ill-treatment on return to Zimbabwe; and

(d) that the Upper Tribunal erred in law in holding that Mr Mosira had rebutted the presumption under section 72(2) of the 2002 Act, in that it failed to have any or any proper regard to the factual findings made by the FTT and to the seriousness of his criminal offending.

Too little to late

In point (c) the Secretary of State formulated the argument it should arguably have been raising all along: that it was unnecessary for the FTT to apply Article 1C(5) because one was dealing with an individual who had never been a refugee as defined in the Refugee Convention.

However, the Court adopted a strict approach given the tardiness of the submission, and the lack of any formal application for permission to rely upon it.

…[J]ustice 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. Also, in large part because of the way in which Mr Drabble was taken by surprise, we have not had the benefit of full, informed and properly researched argument on the point. Mr Drabble did his best to touch on some of the further issues which would have to be addressed if the point were introduced on the appeal, but had not had a fair chance to complete his research or develop his submissions in response. Mr Malik himself made no attempt in his submissions to examine what the effect of the 2003 policy might be if this new argument were correct as a matter of interpretation of the Refugee Convention, e.g. by referring us to the domestic principles and case-law on legitimate expectations. It is neither just nor appropriate for this court to give permission for this new point to be taken by the Secretary of State. For these reasons, I consider that this appeal should proceed by reference to Mr Malik’s reformulated points (a), (b) and (d) above.

The remaining points were given equally short shrift by the Court of Appeal. As to point (a), the court noted that Mr Mosira was perfectly entitled to argue that his removal from the UK would breach the UK’s obligations under the Refugee Convention, and that the Tribunal had not exceeded its jurisdiction in examining the case presented [48].

In relation to point (b), the Court re-stated that Mr Mosira had not been granted refugee status by reason of the threat of ill-treatment by the authorities in Zimbabwe, and therefore the change in the threat posed by the authorities in Zimbabwe had no bearing upon “the circumstances in connection with which [Mr Mosira] has been recognised as a refugee”; circumstances relating solely to the 2003 family reunion policy, to join someone in the UK who had refugee status in the UK [49].

Point (d) was dispensed with simply: The Court considered that the Upper Tribunal had 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 made by the FTT was enough to rebut the presumption that Mr Mosira is a person constituting a danger to the community [50].

Comment

While some might view the judgment as a missed opportunity to deport a convicted sex offender, others will laud the Court for its proper reasoning and desire to hold the Secretary of State to account in circumstances where her decisions appeared scatty, flawed and unlawful. As Lord Justice Sales comments:

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.

It perhaps comes as no surprise therefore that the Secretary of State’s appeal was dismissed.