Secretary of State for the Home Department v MS (Somalia)

The Respondent, MS, was granted asylum on 8 October 2012. On 15 September 2015, the Appellant (“the SSHD”), informed MS that she had ceased his refugee status and that he had been made subject to a deportation order. MS appealed against that decision and his appeal was allowed by the First Tier Tribunal (“FTT”) in a decision promulgated on 20 September 2017. The SSHD’s appeal to the Upper Tribunal (“UT”) was dismissed in a decision promulgated on 22 March 2018.

The SSHD appeals against the UT decision on three grounds: (1) the FTT and the UT erred in concluding that the SSHD cannot “in principle” rely upon the availability of internal relocation as the basis for the cessation of refugee status under Article 1C(5) of the Refugee Convention (“the Convention”); (2) the FTT and the UT erred in failing to apply s.72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) to MS’s case, and (3) the FTT erred in concluding that the removal of MS to

Section 72 of the 2002 Act involves a statutory presumption for the purpose of the construction and application of Article 33(2) of the Convention (exclusion from protection) that a person, such as MS, who has been sentenced to a period of imprisonment for at least two years has been convicted of a particularly serious crime and constitutes a danger to the community of the UK. It also involves a procedure whereby the SSHD issues a certificate that the presumption applies.

MS is a national of Somalia who was born on 14 March 1989.

He entered the UK with his mother and 6 siblings on 21 November 2002 at the age of 13 and claimed asylum as his mother’s dependant. The application was refused but the family were granted exceptional leave to remain. His mother applied for asylum in May 2007, with the appellant and his siblings again cited as dependants upon that application. The application was refused on 28 November 2010 but his mother’s appeal was allowed on 15 July 2011 and both she and her children (with the exception of MS) were granted asylum on 28 July 2011.

In allowing the mother’s appeal, the FTT noted that she resided in a town called Goob Weyn which is located in the Lower Juba region of Southern Somalia. The reason for allowing the appeal was that she was at risk of persecution as a member of the minority Ashraf clan and would be returning to Somalia as a lone woman.

MS was not initially granted asylum in line with that of his mother due to the need to give further consideration to his criminality and as a consequence of the parallel immigration proceedings in his case. That decision was subsequently withdrawn and he was granted asylum in line with the remainder of his family on 8 October 2012.

On 24 September 2012, MS had been convicted of conspiracy to defraud. There was a delay in the passing of sentence because MS absconded, but on 31 March 2014 MS was sentenced to 21 months imprisonment for this offending.

On 13 November 2014, MS was served with a decision to deport. The decision certified the case under s.72 of the 2002 Act although the SSHD acknowledges that this appears to have been in error because the sentence which was passed was for less than two years imprisonment.

On 1 May 2015, MS was notified of the SSHD’s intention to cease his refugee status and he was invited to submit representations in response. Notification was also provided to the UNHCR. Representations were received from MS on 8 June 2015 and from the UNHCR on 17 June 2015.

On 15 September 2015, MS was made the subject of a deportation order and a decision to refuse his protection and human rights claim. Included within this was a decision to cease MS’s refugee status.

On 15 April 2016, following an appeal being lodged against the decision to deport, MS was sentenced to 25 months imprisonment following convictions for assault occasioning actual bodily harm. MS also received a three-month consecutive sentence in respect of a separate conviction for battery.

On 15 June 2017, the FTT adjourned MS’s appeal in order for the SSHD to take account of his most recent sentence.

On 1 August 2017, the SSHD served a supplementary decision letter maintaining the original decisions to deport and to refuse his human rights claim.

In the supplementary decision letter the SSHD stated that she considered the offences of beating and assault occasioning actual bodily harm as extremely serious, as reflected in the Judge’s sentencing remarks and the sentence imposed.

It was noted that since MS’s arrival in the UK, he had accumulated 18 convictions comprising 25 offences and that his most recent conviction clearly demonstrated an escalation in seriousness. In summary, between 7 January 2006 and 20 September 2015, he had committed the following offences: 3 offences against the person; 2 offences against property; 1 fraud and kindred offence; 5 theft and kindred offences; 3 public disorder offences, 3 offences relating to police/courts/prisons; 1 drug offence; 1 firearms/shotguns/offensive weapons and 7 miscellaneous offences. For those offences he received various sentences including imprisonment; detention and training orders; conditional discharges; suspended sentences; supervision orders; curfew requirement – electronic monitoring; fines; costs and victim surcharges. His driving licence was also endorsed. The SSHD stated that it was therefore considered that he was an habitual offender who has very little, if any, regard for the wellbeing and safety of the UK public.

It was further noted that MS had failed to report to Immigration on 11 January 2017, after being granted bail by the IAC on 5 January 2017 and had been recalled to prison on 25 February 2017 on non-compliance grounds. Previous to this he had breached a suspended sentence and failed to surrender to custody at the appointed time.

The letter concluded:

The SSHD accepts that the letter ought to have certified the case under s.72 of the 2002 Act, but this was not done. It would appear that the reason for this was that the author of the letter considered that there was no necessity to certify the claim under s.72 because MS’s refugee status had already been ceased. The SSHD can, however, both cease status and certify the claim under s72, and this is commonly done.

On 20 September 2017, MS’s appeal was allowed by the FTT on the basis that the criteria for cessation of refugee status had not been made out, that MS should continue to have protection under the Convention and Article 3 of the ECHR and that he was therefore excluded from deportation. The FTT also held that the requirement to consider s.72 did not arise as the SSHD could not rely on a certificate relating to a conviction which pre-dated the grant of asylum to MS.

The SSHD appealed to the UT on the basis that the FTT’s approach to cessation and Article 3 was erroneous. That appeal was dismissed by the UT on 22 March 2018.

Permission to appeal to the Court of Appeal was granted by Haddon-Cave LJ on 10 December 2018. The grounds of appeal

The grounds of appeal are:

Ground 1 - Cessation of refugee status.

Ground 2 - Failure to apply s.72 of the 2002 Act.

Ground 3 - Article 3 ECHR.

Article 1A(2) of the Convention defines a refugee as being a person who:

It is well recognised that if a person, who has a well-founded fear of persecution at the place where he lives, can reasonably be expected to relocate to a place within his country where the protection of his country would be available to him, then he will not fall within the Convention definition of refugee – the principle of internal relocation.

As explained by Lord Bingham in Januzi v SSHD[2006] 2 AC 426 at [7]:

The internal relocation principle is reflected in Article 8 of EU Council Directive

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.

In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.

Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.”

Effect is given to Article 8 in the UK by paragraph 339O of the Immigration Rules as follows:

a grant of refugee status if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country; or

a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.

In examining whether a part of the country of origin or country of return meets the requirements in (i) the Secretary of State, when making a decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person.

(i) applies notwithstanding technical obstacles to return to the country of origin or country of return.”

In relation to the cessation of refugee status, Article 1C (5) of the Convention provides:

This is reflected in Article 11(1)(e) of the Qualification Directive which provides:

A third country national or a stateless person shall cease to be a refugee, if he or she:

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 wellfounded.”

Cessation is addressed in paragraph 339A of the Immigration Rules which provide:

The FTT decided that, as a matter of principle, the possibility of internal relocation should not lead to the cessation of refugee status as it only relates to part of the country. As explained at paragraphs 60-61 of the decision:

Paragraph 17 of the UNHCR Guidelines provides:

The UT upheld the decision and reasoning of the FTT, stating as follows:

It should be noted that the SSHD accepts that he would need to show that internal relocation would be reasonable and not unduly harsh for the individual concerned if it is to be relied upon in relation to cessation.

Mr John-Paul Waite for the SSHD submitted that the approach of the FTT and the UT is wrong in principle and contrary to recent Court of Appeal authority.

It is wrong in principle because the absence of a suitable place of internal relocation is an integral part of the test for establishing refugee status and logically the availability of such a place should equally be a basis upon which refugee status can be ceased.

It is contrary to authority because in the recent case of SSHD v MA (Somalia) [2019] 1 WLR 241, this Court held at [2] (Arden LJ) that:

As Arden LJ further stated at [47]:

The Court also held that such a requirement of symmetry was consistent with the

Although MA (Somalia) was not concerned with internal relocation, it was submitted that the mirror image approach applies where, as in this case, the lack of a place of internal relocation was an integral ground of the decision to recognise refugee status. The SSHD contended that that circumstance has ceased to apply on a durable basis and the cessation decision was accordingly lawfully made.

The status of the UT decision in the present case in the light of MA (Somalia) was considered by UT Judge Plimmer in SSHD v AMA [2019] UKUT 00011, an internal relocation case. As reflected in the headnote, she held that: “Changes in a refugee’s country of origin affecting only part of the country may, in principle, lead to cessation of refugee status, albeit it is difficult to see how in practice protection could be said to be sufficiently fundamental and durable in such circumstances”.

In relation to the issue of principle, UT Judge Plimmer stated:

In relation to the evidential difficulty of establishing cessation on the basis of internal relocation, UT Judge Plimmer stated:

Although I note the difference in approach with the first part of [17] of the UNHCR Cessation Guidelines, in principle there remains a requirement to apply the same refugee definition for both the grant of status and cessation, and this includes a consideration of internal relocation. However, given the nature of the demanding test required to be met for cessation, it is difficult to see how in practice ‘an internal relocation case’ can meet the required threshold. To that extent, there is force in the last sentence of [17] of the Guidelines that where safety is limited to a specific part of the country, that would indicate that the changes have not been fundamental. At [57] of MA Arden LJ was prepared to treat the Guidelines as an important text for the purposes of interpreting the QD replicating the Refugee Convention, but considered [17] of the Guidelines to merely address internal relocation, which is separately dealt with in the QD – see [39] and [57] of MA. The Court of Appeal therefore did not provide any clear view on the correctness of [17] of the Guidelines.

Changes in the refugee’s country of origin affecting only part of the country may, in principle, lead to cessation of refugee status provided that the protection available is sufficiently fundamental and durable notwithstanding the absence of this in other parts of the country. It is difficult to see how in practice protection could be said to be fundamental and durable in these circumstances, but it is not necessarily impossible (particularly in a very large country). In so far as MS states that as a matter of principle, refugee status cannot cease solely on the basis of a change of circumstances in one part of the country of origin, I disagree. Whilst in principle internal relocation is relevant to whether a refugee can continue to refuse to avail himself of the protection of his country of nationality, generally speaking or as a matter of practice, it is likely to be very difficult to cease refugee status in an ‘internal relocation case’. This is because by necessary implication there will be a part of the country where a well-founded fear of persecution continues (or else internal relocation would not arise) and in such circumstances the requirement that the change in circumstances be fundamental and durable or

At the hearing of the appeal Mr Stephen Vokes for MS accepted that the approach of the UT in AMA was correct. He accordingly conceded that it was wrong to hold that internal relocation could not in principle lead to cessation. However, he emphasised and relied upon the practical difficulties of showing that there had been a sufficiently fundamental and durable change in circumstances where the change only affects a part of the country, as explained by the UT in AMA. In this connection he also relied upon Article 7 of the Qualification Directive and the requirement there set out for actors of protection to control “the State or a substantial part of the State”.

Mr Vokes also relied upon the need for a “strict” and “restrictive” approach to cessation clauses for the reasons set out by the House of Lords in Hoxha & Anr v Secretary of State for the Home Department[2005] UKHL 19, and, in particular, in the judgment of Lord Brown at [63]-[65]:

Many other UNHCR publications are to similar effect. A single further instance will suffice, taken from the April 1999 Guidelines on the application of the cessation clauses:

The reason for applying a “strict” and “restrictive” approach to the cessation clauses in general and 1C (5) in particular is surely plain. Once an asylum application has been formally determined and refugee status officially granted, with all the benefits both under the Convention and under national law which that carries with it, the refugee has the assurance of a secure future in the host country and a legitimate expectation that he will not henceforth be stripped of this save for demonstrably good and sufficient reason. That assurance and expectation simply does not arise in the earlier period whilst the refugee's claim for asylum is under consideration and before it is granted. Logically, therefore, the approach to the grant of refugee status under 1A (2) does not precisely mirror the approach to its prospective subsequent withdrawal under 1C

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.

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.

In summary, in a case in which refugee status has been granted because the person cannot reasonably be expected to relocate, a cessation decision may be made if circumstances change, so as to mean that that person could reasonably be expected to relocate, provided that the change in circumstances is, in the language of the Qualification Directive, “significant and non-temporary”. Helpful guidance in relation to the assessment of the reasonableness of internal relocation is given in the recent decision of this Court in AS (Afghanistan) v SSHD [2019] EWCA Civ 873.

The size of the area of relocation will be relevant to the reasonableness of being expected to relocate there and also to whether the change in circumstances is significant and non-temporary. I do not, however, accept that there is any requirement that it be a substantial part of the country. Article 7, which is relied upon by Mr Vokes, is concerned with the different issue of the circumstances in which nonState parties or organisations may be regarded as actors of protection. In that context

I also have reservations about the generalised statements made by UT Judge Plimmer in AMA that it will be difficult in practice for a change in circumstances in a place of relocation to be sufficiently fundamental and durable or “significant and nontemporary” for there to be cessation. That may be so in some cases, but it will all depend on the evidence in any particular case and one should not generalise.

I recognise that this involves differing from the approach set out in paragraph 17 of the UNCHR Guidelines in so far as that states that “changes in the refugee’s country of origin affecting only part of the territory should not, in principle, lead to cessation of refugee status”. I accept, however, as the Guidelines state, that “not being able to move or establish oneself freely in the country” is relevant to whether the change in circumstances is fundamental, or “significant” and “non-temporary”.

It follows that the FTT and the UT erred in law in holding that the availability of internal relocation cannot in principle lead to a cessation of refugee status and the case will have to be remitted to consider whether or not it does so on the facts in this case.

Article 33 of the Convention provides:

Section 72 of the 2002 Act provides:

This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).

A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is—

convicted in the United Kingdom of an offence, and

sentenced to a period of imprisonment of at least two years.

A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if— (a) he is convicted outside the United Kingdom of an offence,

he is sentenced to a period of imprisonment of at least two years, and

he could have been sentenced to a period of imprisonment of at least two years had his conviction been a conviction in the United Kingdom of a similar offence.

A person shall be presumed to have been convicted by a

he is convicted of an offence specified by order of the Secretary of State, or

he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a). ….

a person appeals under [section 82] of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground [mentioned in section 84(1)(a) or (3)(a) of this Act (breach of the United Kingdom's obligations under the Refugee Convention), and]

the Secretary of State issues a certificate that presumptions under subsection (2), (3) or (4) apply to the person (subject to rebuttal).

must begin substantive deliberation on the appeal by

if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).”

The FTT clearly regarded MS’s criminality as being material.

In paragraph 29 of its determination the FTT stated:

Referring to the absence of a certificate, in paragraph 29 the FTT stated:

In paragraph 36 the FTT concluded:

The FTT Judge did not, however, consider that she was entitled to place reliance on MS’s convictions unless there was a s.72 certificate which the SSHD could rely upon. The only certificate issued was one which related to convictions before asylum was granted. The FTT considered that this certificate could not be relied upon as the grant of refugee status meant that as at that time the SSHD cannot have regarded the convictions to be of a particularly serious crime or that he was a danger to the public. Although the facts relating to MS’s 2016 conviction and sentence of over 2 years were before the FTT, it would appear that the FTT did not consider that this could be relied upon without a certificate relating to it.

This aspect of the FTT decision was not appealed to the UT and it was noted at paragraph 62 of the UT determination that:

The first issue to be addressed is whether it is open to the SSHD to raise this ground of appeal in circumstances where this was not an issue appealed to the UT, nor does the ground reflect the way the matter was put before the FTT. Mr Waite contended

Section 72 relates to Article 33(2) of the Convention under which the benefit of the prohibition of expulsion or return under Article 33(1) “may not, however, be claimed by a refugee” who, having been convicted of “a particularly serious crime, constitutes a danger to the community of that country”. Although there is no specific reference to Article 33 in the FTT decision, by claiming that he remained a refugee and challenging the SSHD’s decision to deport him MS was necessarily relying on Article 33(1) and the SSHD was seeking to rely on MS’s convictions in support of the deportation decision, and, specifically before the FTT, on the certificate which had been issued.

Under s.72 a person sentenced to imprisonment for at least 2 years is to be presumed to have been convicted of “a particularly serious crime and to constitute a danger to the community” of the UK. That statutory presumption is of general application and it applies regardless of whether a s.72 certificate has been issued.

This is made clear in the decision of this Court in SSHD v TB (Jamaica) [2008] EWCA Civ 977, [2009] INLR 221. At [28] of his judgment Stanley Burnton LJ, with whom the other members of the Court agreed, stated as follows:

That passage was cited with approval and followed by this Court in AQ (Somalia) v SSHD[2011] EWCA Civ 695, [2011] Imm A.R. 779 in which Sullivan LJ, with whom the other judges agreed, stated as follows:

As Stanley Burnton LJ said, a certificate has the limited procedural effect of requiring the tribunal to first address the certificate and any issue as to the rebuttal of the presumption which is of general application, but it is to be noted that the appellant may rebut not merely the presumption of dangerousness but also the presumption of serious criminality (see the decision of the Court of Appeal in EN (Serbia) ).

It seems to me that this conclusion follows inexorably from the plain wording of Section 72, and the provisions of Rule 364 are, with respect to Mr Mello's submissions, of no relevance whatsoever to that question of interpretation. On any basis, what is said in a rule could not displace the clear meaning of primary legislation and the meaning of Section 72 is plain.”

These authorities make it clear that, once the facts giving rise to the statutory presumption have been established, it would be an error of law for the relevant decision maker to fail to apply the presumption, irrespective of whether a certificate had been issued.

This was recognised by the UT in its decision in SSHD v Mugwagwa [2011] UKUT 00338 (IAC) in which it was stated that:

In the present case the fact of MS’s sentence of at least 2 years was before the FTT and the UT and they were accordingly obliged by s.72 of the 2002 Act to apply the presumption when considering the lawfulness of the decision to deport MS notwithstanding his status as a refugee.

Given the obligation on the FTT and the UT to apply the statutory presumption, and the public interest in deportation of serious criminals who are to be regarded as a danger to the community of the UK, I am satisfied that this is a ground of appeal which the SSHD should be allowed to raise, even though it has not previously been raised in these terms and was not an issue appealed to the UT.

By failing to apply the statutory presumption the FTT and the UT erred in law. The only basis for concluding otherwise was the suggestion that the failure to certify and to pursue this ground in itself shows that the SSHD did not consider MS to be a serious criminal or a danger to the community. That is not supported by the evidence and, in any event, the statutory presumption applies regardless.

It remains open to MS to seek to rebut the statutory presumptions and on this issue also the case will accordingly have to be remitted.

In determining this issue the FTT followed the guidance set out at headnote (xii) of the decision in the MOJ casein which the UT gave country guidance in respect of Somalia at paragraphs 407-408. Headnote (xii) sets out paragraph 408 of that decision, which provides:

Paragraph 408 refers back to matters set out in paragraph 407h. as follows:

circumstances in Mogadishu before departure;

length of absence from Mogadishu;

family or clan associations to call upon in Mogadishu;

access to financial resources;

prospects of securing a livelihood, whether that be employment or self-employment;

availability of remittances from abroad;

means of support during the time spent in the United Kingdom;

why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.

In Said v SSHD this Court disapproved of paragraph 408 of the above guidance in so far as it purported to establish the circumstances in which removal to Somalia would infringe Article 3. Burnett LJ, with whom the other judges agreed, stated as follows:

The Luxembourg Court considered article 15 of the Qualification Directive in Elgafaji v Staatssecretaris van Justitie [2009] 1 WLR 2100 and in particular whether article 15(c) provided protection beyond that afforded by article 3 of the Convention. The answer was yes, but in passing it confirmed that article 15(b) was a restatement of article 3 . At para [28] it said:

In view of the reference in the paragraph immediately preceding para 407 to the UNHCR evidence, the factors in paras 407(h) and 408 are likely to have been introduced in connection with internal flight or internal relocation arguments, which was a factor identified in para 1 setting out the scope of the issues before UTIAC. Whilst they may have some relevance in a search for whether a removal to Somalia would give rise to a violation of article 3 of the Convention, they cannot be understood as a surrogate for an examination of the circumstances to determine whether such a breach would occur. I am unable to accept that if a Somali national were able to bring himself within the rubric of para 408, he would have established that his removal to Somalia would breach article 3 of the Convention. Such an approach would be inconsistent with the domestic and Convention jurisprudence which at para

By relying upon and applying paragraph 408 of the MOJ decision in determining whether there would be a breach of Article 3 ECHR the FTT accordingly applied the wrong legal test, as Said v SSHD makes clear.

Mr Vokes for MS realistically accepted that this may have been a legal error but suggested that its materiality was doubtful given the findings made by the FTT in relation to the humanitarian situation. I do not accept that submission. The test applied was clearly material to the decision reached.

It follows that this decision also involves an error of law and that on this issue also remission will be necessary.

For the reasons outlined above I would allow the appeal on all three grounds of appeal and the case will need to be remitted.

I agree with both judgments.

I agree that this appeal should be allowed, and the case remitted, for the reasons given by Hamblen LJ.

I only wish to say anything of my own on ground 1, which raises the only issue of general application. I appreciate that our conclusion differs from that of UNHCR at para. 17 of its Guidance, quoted by Hamblen LJ at para. 33 of his judgment. That is not something that I take lightly, but I have to say that I do not find convincing either of the reasons given by UNHCR for the proposition that “changes in the refugee’s country of origin affecting only part of the territory should not … lead to cessation”. The first is that the risk of persecution should not be regarded as having been removed if the refugee “has to return to specific safe parts of the country”; but, with respect, that statement is itself unreasoned, and I cannot see any principled basis for it, given that the refugee would not have been granted protection in the first place if there were a part of his or her own country where they could be safe and to which it was reasonable for them to relocate. The “mirror image” approach endorsed by Hamblen LJ seems to me both fair and principled. I recognise that the fact that the refugee has left their home country and found safety in the country of refuge, perhaps years previously, must be taken into account; but, so far as the Convention issues are concerned, the way that that is done is not by changing the basic criteria for protection but by the requirement for a specially strict approach to their application, with the burden on the Secretary of State, as enjoined in Hoxha (see para. 48 of Hamblen LJ’s judgment). It may also of course, separately, and depending on the particular facts, give the refugee grounds for arguing that his or her removal is in breach of their rights under article 8 of the ECHR. As for the UNHCR’s second reason, namely that the fact that only part of the country is safe indicates that the changes have not been fundamental, I cannot see that that will axiomatically be so. Whether it is or not will depend on the particular facts.

At para. 50 of his judgment Hamblen LJ rejects Mr Vokes’ submission (by way of alternative to his main point) that cessation will not be legitimate in an internal relocation case unless the safe area is “substantial”. I agree with him, but the context must be appreciated. The Secretary of State proposes to return MS to Mogadishu. Mr Vokes’ submission proceeded on the assumption that even if Mogadishu is safe that cannot justify cessation because it does not constitute a substantial part of Somalia as a whole. In terms simply of land area, that is no doubt true, but in other respects it is plainly not: on the contrary, it is the capital and the largest city in the country, and home to a substantial part of its population. I do not accept that the possibility of return/relocation to such a place is incapable of justifying cessation, though of course whether it in fact does so will depend on the assessment of the tribunal.

I mention for completeness that there is another appeal pending before this Court which raises an issue about the nature of the rights enjoyed by a person granted