The Secretary of State for the Home Department v MA (Somalia)

The issues which we have to decide on this appeal include: (1) the test to be applied by the state which recognised a person as a refugee (“the recognising state”) when determining whether (or that) a refugee’s status can be ended (“a “cessation decision”) under the Qualification Directive (see paragraph 3 below), (2) whether a cessation decision can be made without also considering the question whether the refugee’s rights under Article 3 of the European Convention on Human Rights (“the Convention”) would be violated if he were to be returned to his country of origin, (3) whether Article 3 would be violated if a person to be returned is at risk of being subjected to living standards which fall below humanitarian standards in his country of origin, (4) whether, on the facts of this case, the tribunals applied the right test for an appeal from a cessation decision, and (5) whether, in the case of the First-tier Tribunal (“the FTT”), any remittal should be on the basis of the existing factual findings or whether certain of those findings should be set aside because the outcome of the fact-finding process was perverse. These issues arise from the orders of the FTT and the Upper Tribunal in these proceedings allowing appeals from the Secretary of State’s decision to cease the respondent’s refugee status under the Qualification Directive.

For the reasons given below, and in the light of the careful submissions that we have had on the important decision of the Court of Justice of the European Union (“CJEU”) in Joined Cases C-175/08, C-176/08, C-178/08, C0179/08, Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi & Dier Jamal v Bundesrepublik Deutschland, 2 March 2010 (“Abdulla”), I have 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. The recognising state does not in addition have to be satisfied that the country of origin has a system of government or an effective legal system for protecting basic human rights, though the absence of such systems may of course lead to the conclusion that a significant and non-temporary change in circumstances has not occurred.

It is not appropriate to refer this matter to the CJEU for a preliminary ruling.

The question whether Article 3 would be violated by the refugee’s return to his country of origin is not part of the cessation decision but separate from it, and there is no violation by reason only of the absence of humanitarian living standards on return.

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.

The Tribunals did not apply the right test for an appeal against a cessation decision.

The matter should be remitted to the FTT on the basis that some factual findings are not preserved.

The issues of law as to the requirements for the cessation of refugee status fall in this case to be decided under the Qualification Directive 2004/83/EC (“the Qualification Directive” or “QD”). The QD, which has been superseded for member states of the EU other than the UK, Ireland and Denmark by a directive known as “the recast Qualification Directive”, sets EU-wide standards for dealing with asylum claims that must be reflected in the legislation of the individual member states dealing with asylum claims as a shared competence. The QD is intended to take account of the member states’ obligations under the 1951 Convention relating to the Status of Refugees 28 July 1951 and Protocol of 31 January 1967 (“the Refugee Convention”), but may involve further protection. The relevant provisions of the QD are set out in the Appendix to this judgment. The member states of the EU may make references to the CJEU for preliminary rulings on issues as to the interpretation of the QD, and this judgment will need to consider one particular decision of the CJEU on the QD (Abdulla).

The Office of the UN High Commission for Refugees (“UNHCR”) has a supervisory responsibility for providing guidance on the operation of the Refugee Convention. For instance, Recital 15 of the QD states that consultations with the UNHCR “may provide valuable guidance for Member States when determining refugee status according to Article 1 of the Geneva Convention”. In Adan v Secretary of State for the Home Department [2001] 2 AC 477 at 520, Lord Steyn held that “the UNHCR Handbook, although not binding on states, has high persuasive authority, and is much relied on by domestic courts and tribunals: Aust, Modern Treaty Law and Practice (2000), p 191 [now (2013) (3^rd ed) (Cambridge) p 212].”

The respondent is a Somali national. He left his home city, Mogadishu, in 2003 for Yemen. He arrived in the UK and claimed asylum on 16 July 2004. His application was refused on 13 November 2004 but was subsequently allowed on 15 February 2005. On 7 March 2005, he was granted asylum and indefinite leave to remain on the basis of ethnic origin as he belonged to the Reer Hamar clan.

Refugee status falls to be considered in the context of many diverse societies and political systems. In the case of Somalia, clans play an important part in the governance of the country and the structure of its communities. The Home Office Country Information Guidance – South and Central Somalia: Majority Clans and Minority Groups states that:

The respondent has a history of offending but this is not relevant for the purposes of this appeal and so I propose to say no more about it. The sole focus in this appeal is the Secretary of State’s decision to cease the respondent’s refugee status on the grounds that the fear which led to the grant of refugee status no longer exists.

The conditions in Somalia for a returning refugee depend on the level of support available to him, including support in the form of remittances from the UK. The respondent has been in the UK for eleven years and his family here consists of a brother and a sister. The brother is a British citizen. His sister is a British citizen who lives in the UK with her husband and seven children. There is an issue as to the extent to which the respondent’s UK family would support him in Somalia.

On 3 October 2014, the Upper Tribunal handed down a new country guidance decision for Somalia: MOJ and others (Return to Mogadishu) (CG) [2014] UKUT 442. This held that ordinary civilians returning to Mogadishu were no longer at any risk from security forces, international forces or terrorist organisations. Such persons would normally look to their family or clans for support on return. The paragraphs relevant to the present appeal read as follows:

The Secretary of State took the view that in these circumstances the respondent would no longer be at real risk of persecution on account of his Reer Hamar ethnicity. There was a growing economy in Somalia. So he would not be at real risk of being a vulnerable, internally displaced person (“IDP”) if he returned to Mogadishu.

In the circumstances, the Secretary of State concluded that the respondent could no longer continue to avail himself of international protection because the circumstances in connection with which he had been recognised as a refugee had ceased to exist.

The deportation order was made on 15 January 2015. On 15 January 2015, the Secretary of State made a further decision to cease refugee protection and a human rights claim. Further, the Secretary of State rejected the respondent’s Articles 3 and 8 claims.

The respondent appealed to the FTT.

The respondent appealed to the FTT. On 26 August 2015, the FTT (Judge Hindson) allowed the appeal. He found that the respondent was a credible witness. On the question of the cessation decision, the FTT held that the respondent was from a minority clan. He did not know where his parents were. He had had little education. There is no practical way of getting funds to someone in Somalia. His family in the UK would not be able to support him because they were on benefits. He had no skills that would help him find work in Somalia. Therefore, if the respondent was to be returned to Somalia, it was likely that he would have to live in conditions that fell below acceptable humanitarian standards. At paragraph 32 of its decision, the FTT held that paragraph 339A of the Immigration Rules (dealing with cessation decisions) was not made out and that the appeal had to be allowed. The Secretary of State appealed to the Upper Tribunal.

Upper Tribunal Judge Lane dismissed the Secretary of State’s appeal. He held that the grounds of appeal ultimately amounted to little more than a disagreement with the FTT’s conclusion. The FTT Judge clearly had in mind the lengthy period in which the respondent had been absent from Somalia while living in the UK. There was no question of inadequate reasoning. There was no evidence that family members outside Somalia would support the respondent. The Somali Welfare Society could not support him. The FTT had reached a conclusion which was available to it on the evidence.

The Upper Tribunal accepted that the FTT had not dealt with the cessation decision in any depth, concluding at paragraph 7 of its decision:

The Guidelines to which the Upper Tribunal refers, namely The G uidelines on International Protection No. 3: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the "Ceased Circumstances" Clauses) (10 February 2003) state that:

On the restoration of protection by the country of origin, the Guidelines state:

There is a discrete argument in this Court as to whether, in dealing with the cessation decision, the Upper Tribunal went beyond the grounds of appeal. Mr Daniel Sills, for the respondent, submits as a preliminary procedural issue that the Secretary of State should not be permitted to raise in this Court new matters that had not been raised in the grounds to the Upper Tribunal. The sole ground of appeal described by the Upper Tribunal when giving permission was that the FTT Judge had failed properly to apply the guidance in MOJ.

The Secretary of State in response relies on ground 11 of her grounds of appeal to the Upper Tribunal, which read as follows:

In these circumstances, it is respectfully submitted that the Judge’s conclusion that the appellant continues to qualify as refugee discloses failures to adequately resolve material conflict in the evidence; and amounts to material legal misdirection and failure to provide adequate reasons for dispositive findings.

In my judgment, there was clearly argument at the hearing before the Upper Tribunal about what had to be shown for a cessation decision and that argument centred on Abdulla. That argument in my judgment fell within ground 11, which refers to a misdirection and clearly makes a challenge to the continued status of the respondent as a refugee. In any event, the decision of the Upper Tribunal dealing with the issue of a cessation decision having been issued, it must be open to the Secretary of State to appeal to this Court to challenge that decision.

Mr John-Paul Waite, for the Secretary of State, criticises the test for cessation of refugee status applied by the FTT. It wrongly focused on humanitarian conditions, which are relevant to Article 3 of the Convention (although on his submission the respondent had not invoked that Article nor did the FTT expressly refer to it), and not to a cessation decision.

On Mr Waite’s submission, the correct test was whether the fear which had led to the respondent previously being recognised as a refugee still existed. He submits that a person is a refugee for the purposes of the Refugee Convention if he falls within Article 1A(2) of that Convention, which provides:

Article 1C (5) of the Refugee Convention (“the ceased circumstances clause”) provides for the conditions that must be satisfied for ending or cessation of refugee status:

Identical wording is contained in paragraphs 339A(v) of the Immigration Rules, referred to in paragraph 24 of the FTT’s determination. The relevant provision of the QD is Article 11(1)(c) (see Appendix) (“the QD ceased circumstances clause”).

The CJEU interpreted the ceased circumstances clause in Abdulla, which I will need to analyse in detail below. Essentially, Mr Waite submits that the decision of the CJEU in Abdulla upholds the approach to the cessation decision for which he contends. That approach does not involve any consideration of Article 3. Moreover, on his submission, the CJEU does not assert that the sufficiency of protection remains relevant if the fear which created the need for international protection has disappeared.

Mr Waite accepts that the institutions or parties which provide protection in general for individual citizens may be relevant in several respects to a cessation decision, for example in determining whether a fear of persecution continues to exist. But the lawfulness of a cessation decision does not depend on any comprehensive verification of the country of origin’s systems for protecting human rights, nor on any question relating to Article 3.

The respondent had previously been granted asylum status because he was a member of a minority clan. But MOJ had held that this was no longer a risk factor.

In support of his submission that the question of any violation of Article 3 is a separate matter, Mr Waite also relies on this Court’s decision in Said v Secretary of State for the Home Department [2016] Imm AR 1084, which interprets the paragraphs in MOJ which I have already set out in paragraph 10 above.

Said concerned relocation and not cessation. Internal relocation (and internal flight) (“IFA/IRA”) are distinct from cessation. They arise under judicial interpretation of the Refugee Convention and under Article 8 of the QD (see Appendix) when the state from which protection is sought contends that the person claiming refugee status could safely settle in some other part of the country of origin. By contrast, Article 3 arises under the Convention.

In Said, Burnett LJ, with whom the other members of the Court agreed, analysed paragraphs 407 and 408 of MOJ and held that those paragraphs should be read as drawing a distinction between matters relevant to refugee status and matters relevant to Article 3:

On that basis, humanitarian standards, as referred to in paragraph 408 of MOJ, are only relevant to Article 3 of the Convention and not to a cessation decision. Therefore, submits Mr Waite, the FTT were wrong to hold that the cessation decision was defective because it was likely that the respondent would have to live in conditions that fell below acceptable humanitarian standards.

Furthermore, submits Mr Waite, the relevant test in this case for determining whether Article 3 would be violated is not whether the respondent could be subjected to a deprivation of living standards on his return. Again, Mr Waite relies on Said for this proposition. He submits that this Court there recognised that there was a distinction between cases where a person is subjected to a risk of violence on return and cases of deprivation on return. In that case, the appellant suffered from PTSD and depression, which would make it difficult for him to integrate back into life in Somalia and get a job, but he had his family in the UK to support him and the possibility of some assistance from his clan in Somalia.

This Court held in Said that Article 3 was intended to protect persons from violations of their civil and political rights, not their social and economic rights. In summary, the return of a person who was not at risk of harm because of armed conflict or violence would not in the case of economic deprivation violate Article 3 unless the circumstances were such as those in N v UK [2005] 2 AC 296, where a person was in the terminal stages of illness and lack access to facilities for treatment for his illness in his country of origin. In Said, this Court analysed the case law in the following lengthy passage:

Mr Sills rejects the Secretary of State’s submissions. He submits that, following MOJ, the FTT was entitled to find that the respondent was likely to live in conditions falling below acceptable humanitarian standards if returned to Somalia, and that this was a breach of Article 3. The decision of Said did not properly apply the relevant Strasbourg jurisprudence. Mr Sills submits a court or tribunal which has to asses whether there has been a significant and non-temporary change would have to take into account as a relevant factor any breach of Article 3.

Mr Sills submits that in this case the FTT applied the right test to a violation of Article 3 (if indeed paragraph 32 of its decision is also a decision on Article 3) when holding that a cessation decision could not be made in this case because the respondent would have to live in conditions which fell below acceptable humanitarian standards. He submits that, in Sufi and Elmi, the dire living conditions were the result of war, not of some naturally occurring disaster. MOJ held that the IDP camps were the result of conflict.

Moreover, submits Mr Sills, Abdulla decides that protection is a necessary requirement for a cessation decision and that there is no sufficient judicial protection for basic human rights in Somalia. He relies on the Home Office report referred to in paragraph 6 above at paragraph 1.3.12, particularly the final sentence which concludes that “in general, majority clan or minority group members who are at risk are unlikely to be able to access effective protection from the state.” Mr Sills therefore submits that the tests for the grant and cessation of refugee status are different: there is no symmetry between those two decisions.

On Mr Sills’ submission, a system for protection for basic human rights would mean that the respondent should not be subjected to a breach of Article 3 and the fact that he would be at risk of being so subjected meant that a cessation decision could not be taken. Moreover, there would not have been a significant and non-temporary change of circumstances if a risk of a breach of Article 3 remained so far as the respondent was concerned. Therefore, the FTT was entitled to hold that the challenge to the cessation decision succeeded because the respondent would be likely to be living in conditions which fall below acceptable humanitarian standards.

Furthermore, even if there was no longer any agent of persecution giving rise to fear on the part of the respondent, there was still a requirement for effective protection which was absent. Mr Sills submits that the FTT was entitled to hold that there was no proper justice system. Moreover, the UNHCR Guidelines show at paragraph 17 that changes which affect only part of the territory should not lead to cessation. Those Guidelines argued that there should be no pre-condition that return must be to specific safe parts of the country. That would indicate that the changes have not been fundamental.

Mr Waite submits that it was perverse for the FTT to find the respondent would be destitute on return. The respondent clearly is a young person with some qualifications and skill and he could therefore take advantage of the “economic boom” referred to by MOJ. Mr Waite points out that there was no claim to a violation of Article 3 on the respondent’s part so that the FTT must have thought that a violation of Article 3 prevented the Secretary of State from making a cessation decision.

Moreover, on Mr Waite’s submission, the FTT failed to deal adequately with the question of remittances from abroad. First, the FTT had not considered the possibility that the respondent’s family in the UK would send him some money even if it was not enough to meet all his living expenses. Remittances from the UK were clearly a relevant factor: the Upper Tribunal in MOJ had heard evidence that in 2009 some £16m had been remitted from the UK to Somalia and there was no reason to think that that figure had diminished in subsequent years. Second, the FTT had not considered the possibility of the respondent taking advantage of the economic boom to which MOJ had referred (paragraph 407) and so gaining employment, which would enable him to support himself. In those circumstances, according to MOJ, he would not be a person who needed international protection. Third, the FTT had failed to consider that his financial position would be enhanced by the subvention of £1,500 that he would receive from the UK authorities (see paragraph 407(h), MOJ).

Moreover, on Mr Waite’s submission, the Upper Tribunal was also wrong in two respects. It should have held that the FTT had misdirected itself, and in the light of the fact that there had potentially been a significant and durable change in the circumstances in Somalia, it should have remitted the matter back to the FTT. The need for international protection no longer existed.

Mr Waite cites in support MM (Zimbabwe) v Secretary of State for the Home Department [2017] 4 WLR 132. In this case, the Secretary of State decided to cease the refugee status of a Zimbabwean who had previously been a political activist. One of the relevant circumstances was that he had been in the UK for ten years and had not been politically active in that time. Mr Waite argues that this case demonstrates that courts and tribunals should look at the wider circumstances of an individual case.

Finally, submits Mr Waite, in this case the Upper Tribunal misdirected itself as to the effect of Abdulla in reaching its conclusions at paragraph 7 (see paragraph 16 above).

Mr Sills submits that any error in the reasons given by the tribunals is immaterial. On his submission, the FTT gave clear and sustainable reasons. The Upper Tribunal would need to exercise caution about interfering with any factual findings of the first instance tribunal. He submits that the FTT dealt with the question of funding in Somalia. It found that the UK family would not be able to support the respondent. The respondent’s education had been interrupted and this might impede his employability. There was no evidence that he had some particular skill that was needed in Somalia. Any defect in the reasoning would be immaterial because Somalia does not provide effective protection for a person in the respondent’s position. The issue whether the cessation conditions were fulfilled was not properly before the Upper Tribunal in any event.

Mr Sills submits that MM (Zimbabwe) is of limited assistance because Abdulla was not cited.

Abdulla: cessation of refugee status under the QD involves an individualised and not a generalised evaluation of the changed conditions in the country of origin; the ultimate question under the ceased circumstances clause is simply whether any fear for a Refugee Convention reason has ceased to exist

I accept that it would be inconsistent with the purposes of refugee status, whether under the Refugee Convention or the QD, if protection could be too easily ceased while a person was still in need of international protection or it was not reasonably clear that the need for it had gone. That would hardly solve the problem of persecution and displacement which those instruments are intended to address. Equally, as it seems to me, 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 drafters of the QD were no doubt aware of the risk that states which were obliged to grant refugee status under international law would seek to escape from their obligations too readily. Advocate General Mazak in Abdulla (at paragraph 45) went so far as to suggest that the ceased circumstances clause should be interpreted “in a cautious manner, fully respecting human dignity.” But the CJEU in Abdulla did not develop the concept of human dignity, beyond referring to the statement in Recital 10 to the QD that the QD “seeks to ensure full respect for human dignity”. However, there are other aspects of the QD which reflect the provisions of the Refugee Convention and which demonstrate a need to protect refugees. The QD does not refer to changes in circumstances being “durable” (the phrase used in Refugee Convention jurisprudence) but to their being “non-temporary”. We have not had any argument on whether this might be a stronger word but the CJEU went on (as it seems to me, provisionally, as this is not an issue that had to be argued on this appeal) to interpret it robustly in Abdulla:

Another way of putting the point is that the Refugee Convention and the QD are not measures for ensuring political and judicial reform in the countries of origin of refugees. The risks which entitle individuals to protection are risks which affect them personally and individually. It is an individualised approach. Just as it is no answer to an asylum claim that there is a legal system which might in theory be able to protect them, so conversely the absence of such a system is not an answer to a cessation decision if it is shown that the refugee has sufficient, lasting protection in other ways or that the fear which gave rise to the need for protection has in any event been superseded and disappeared.

The CJEU in Abdulla were essentially faced with the very same argument as was put to us by Mr Sills in this case. To explain this point I need to touch on the facts of the case, the national law and the arguments made before the CJEU.

The facts can be briefly stated. Abdulla involved a reference for a preliminary ruling on the QD from the German Bundesverwaltungsgerict on two questions, of which the first only is relevant. That was the proper interpretation of the refugee status cessation clauses in the QD. The case involved Iraqi refugees who had been granted refugee status in the late 1990s on the basis of persecution suffered at the hands of the Saddam Hussain regime. That regime was overthrown and because of this the German authorities wished to revoke refugee status relying on the QD ceased circumstances clause as implemented by domestic legislation. This provided that refugee status had to be revoked if there was a change of circumstances in the country of origin. However, the conditions in Iraq remained generally unsettled. The EU Commission argued that international protection should continue so long as the conditions in the country of origin were such that there were no proper institutions of government or legal system. Germany and the UK, on the other hand, argued that grounds for cessation could not go beyond the grounds for recognition of refugee status, i.e. for a “mirror image” approach.

The submissions on both sides have involved a textual approach to the reasoning of the CJEU in Abdulla and I cannot satisfactorily address the submissions without setting out the relevant paragraphs of the decision:

Mr Waite’s overarching point is that the wording of the QD supports the contention that the applicable test is whether the circumstances which formed the basis for granting protection still exist and require protection to be given. In my judgment, this was the argument accepted by the CJEU. Paragraph 65 of the decision confirms that refugee status can be ceased. Paragraph 66 makes it clear that the reason for ceasing refugee status must be that because of a change in circumstances the refugee can no longer refuse to accept the protection of the country of origin. Paragraph 67 to 69 make it clear that the protection is “the same” as that previously lacking. Paragraphs 70 and 71 deal with the steps which the recognising state must take to check that there is the relevant protection, but it is to be noted that these checks are rooted in the QD and go no further than the QD itself provides. Thus, paragraph 70 states that when fulfilling their obligations under Article 7(2) the competent authorities of the recognising state must verify that the institutions of the state of origin “have taken reasonable steps to prevent persecution and that they therefore operate an effective legal system for investigating and punishing acts of persecution and that the individual will have access to that protection if he ceases to have refugee status”. Likewise, paragraph 71 makes it clear the protection is to be considered on an individualised basis: the recognising state does not have to consider whether the institutions achieve a particular standard for all purposes.

Paragraph 72 then turns to consider the need for a significant and non-temporary change of circumstances. This is an important part of the QD’s protection for refugees and is designed to ensure that no action is taken to prejudice the status of a refugee until it is clear that the protection for him will be on a lasting basis. But again, the protection is only against acts of persecution to which the QD applies (see paragraph 73 and 74). Paragraph 74 makes it clear that the protection may be provided by international organisations, such as the UN or the African Union. Paragraph 76 recapitulates the points made in paragraphs 55 to 76 and subparagraph (i) emphasises that the protection put in place must be against the same risks as those to which he was previously subject. Subparagraph (ii) is dealing with the process of verification which has been described in more detail in paragraphs 70 and 71. Subparagraph (iii) merely repeats the point made in paragraph 75.

Mr Sills submits that a cessation decision requires more than simply the non-existence of a fear that would lead to recognition as a refugee, and that the country of origin must be shown to have a form of governance and judicial system sufficient to protect human rights. I think he would also say that the country of origin should ensure the returning refugee basic living standards. In my judgment the CJEU did not go down that path. Their essential conclusions are tied into the QD, which make it clear that the protection may but need not come from the state (Article 7(1)), that the system will usually be, but need not always be, a judicial system (Article 7(2)) and that the verification is required on an individual basis not a generalised basis (see Article 4).

In other words, humanitarian standards are not the test for a cessation decision. It matters not whether the FTT had Article 3 of the Convention in mind or whether it simply took the view that a refugee should not be returned unless the country of origin now protected human rights in general. The FTT went much further than the QD or the Refugee Convention.

I appreciate that the UNHCR Guidelines set out in paragraph 17 and 18 above appear to go further. I would treat the Guidelines, while perhaps not of the same persuasive authority as the UN Handbook, as an important text for the purposes of interpreting the provisions of the QD replicating those in the Refugee Convention. But on careful analysis, in my judgment, the Guidelines set out in those paragraphs are saying no more than that the system of protection for human rights generally would indicate whether the individual refugee would be sufficiently protected in his country of origin. The further reference to the Guidelines at paragraph 39 above is dealing with the IFA/IRA, which is separately dealt with in the QD. Even then, the relevant provision of the QD (Article 8) makes it clear that the competent authorities only have to “have regard” to the general circumstances. Thus, a particular standard of protection in relation to general circumstances is not a pre-condition of reliance on the IFA/IRA. In any event, the Guidelines were issued before the decision in Abdulla and (in the event of any conflict) the decision of the CJEU must prevail on this point.

The verification necessary for a cessation decision under the QD would not, therefore, of itself include verification that the returning refugee would have the right to earn a living. One might say that the QD does not, therefore, guarantee a refugee all of President Roosevelt’s famous four freedoms (freedom of speech and expression, the freedom to worship God in his own way, freedom from want and freedom from fear). General circumstances are relevant only in so far as they throw light on the individual circumstances of the refugee in question. MM (Zimbabwe) is a useful reminder of the importance of individual circumstances. Mr Sills frankly and fairly accepted that under Article 7(2) there was no universal rule that there had to be an effective judicial system. The position, he said, was that ordinarily there would be one to provide protection in the country of origin.

Mr Sills relies on the Opinion of the Advocate General in Abdulla, particularly paragraphs 45, 48, 58, 59, 63 and 64. I do not read the Advocate General as saying anything different from the CJEU. He too referred to the need for the effectiveness of any system of protection in the country of origin if international protection was to cease but he did not lay down any absolute rule as to the nature of that system. It had to be considered from the point of view of the individual who was the subject of the cessation decision (see, especially, the final sentences of paragraphs 56 and 62 of his Opinion). The Advocate General refers to the question of general living conditions but expressly on the basis that this is not an “independent criterion” for a compliant cessation decision, but on the basis that the absence of a minimum standard was part of the assessment of whether the change in circumstances could be regarded as significant and non-temporary (see paragraph 63).

I do not in any event accept that it is correct to read into the CJEU’s decision reasoning of the Advocate General which the CJEU did not itself adopt. The correct approach is surely to focus on what the CJEU held in their judgment.

A cessation decision does not involve the question whether Article 3 would be violated

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.

No need for a reference to the CJEU for a preliminary ruling

Mr Sills submitted, almost as an afterthought, that this Court should consider making a reference to the CJEU for clarification of its ruling under question 1 in Abdulla. Mr Waite opposes a reference. I do not consider that this is necessary and I would, therefore, decline to make a reference to the CJEU.

Whether the risk of deprivation on return would lead to a violation of Article 3 of the Convention

The analysis in Said, by which this Court is bound, is that there is no violation of Article 3 by reason only of a person being returned to a country which for economic reasons cannot provide him with basic living standards. Mr Sills however contends that that situation is brought about by conflict, which is recognised by the European Court of Human Rights as an exception to this analysis. It is true that there has historically been severe conflict in Somalia, but, on the basis of MOJ, that would not necessarily be the cause of deprivation if the respondent were returned to Somalia now. The evidence is that there is no present reason why a person, with support from his family and/or prospects of employment, should face unacceptable living standards.

Mr Waite submits that the decision of this Court in FY (Somalia) v SSHD [2017] EWCA Civ 1853 could be read as departing from Said and as accepting that it was sufficient for Article 3 purposes that a person returning to his country of origin might end up living in an IDP camp. Although the holding of the FTT in that case (paragraph 22), which this Court held had not erred in law (paragraph 23), could be read as so holding, Said was not cited and therefore in my judgment to the extent that there is any conflict between the decision of this Court in Said and that in FY Somalia, the decision of this Court in Said should be followed.

Reasoning of the Tribunals was erroneous in law and in the case of the FTT the fact-finding proceedings was defective in law because it was incomplete

I have already concluded that the FTT applied the wrong test to the cessation decision.

As to the Upper Tribunal, I accept Mr Waite’s contention that the Upper Tribunal was wrong in law in its approach, which was to look to the systems of governance in Somalia rather than the protection actually available to the respondent.

Appropriate disposal of appeal: allowing of the appeal and remittal to the FTT

Accordingly, if my Lord agrees, for the reasons given above, I would allow this appeal and remit the matter to a differently constituted FTT.

The FTT is likely to have to make new findings. The clan system is on Mr Waite’s submission a matter which falls to be considered within Article 7 of the QD on the basis that the clans are parties providing protection. It would be a factual matter for the FTT on any remittal to determine whether the clan system as it has evolved, together with any state protection which may have developed in recent times to fill the void left by the decline in the clan system, provides adequate protection for the respondent.

The issue is whether the existing findings, so far as they go, should be preserved. I would accept the argument that it made decisions about the effect of return on the respondent which were not justified by the evidence. It concluded that he would have to live in conditions which fell below humanitarian conditions without considering whether he would be able to take advantage of Somalia’s “economic boom” and find remunerative employment. Nor did it consider whether some remittances could be made to meet some part of his living expenses in Mogadishu, as opposed to the full amount. I would, therefore, remit this matter to the FTT on the basis that it will need to make fresh findings about the respondent’s earning power, whether from remittances or earnings, if he returned to Mogadishu. In contrast, it will not need to revisit its conclusions about the significance of the respondent’s criminal offending, which have not been the subject of appeal by the Secretary of State.

I agree.

This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.

‘refugee’ means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply;

The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:

all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied;

the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;

the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;

whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country;

whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.

Protection can be provided by:

the State; or

parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State

Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.

As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.

A third country national or a stateless person 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;

In considering points (e) and (f) of paragraph 1, Member States shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded.

Serious harm consists of:

death penalty or execution; or

torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations or international or internal armed conflict

A third country national or a stateless person shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required.