MSM v The Secretary of State for the Home Department

THE IMMIGRATION ACTS

Before

The President, The Hon. Mr Justice McCloskey

Upper Tribunal Judge Dawson

Between

MSM

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

Appellant: Mr S Chelvan and Ms V Hutton (both of Counsel), instructed by Duncan Lewis and Company Solicitors

Respondent: Ms DJ Rhee (of Counsel), instructed by the Treasury Solicitor

UNCHR (intervening): Ms M Demetriou QC, acting pro bono, instructed by Baker and McKenzie LLP

[1] The enforced return of the Appellant, a journalist, from the United Kingdom to his country of origin, Somalia, would expose him to a real risk of persecution on the ground of actual or imputed political opinion and/or a breach of his rights under Articles 2 and 3 ECHR.

[2] It is probable that, in the event of returning to Somalia, the Appellant will seek and find employment in the media sector.

[3] The Appellant is not to be denied refugee status on the ground that it would be open to him to seek to engage in employment other than in the media sector.

[4] Documents such as Home Office Country Information Guidance and Country of Information publications and kindred reports should not be forensically construed by the kind of exercise more appropriate to a contract, deed or other legal instrument. Reports of this kind are written by laymen, in laymen’s language, to be read and understood by laymen. Thus courts and tribunals should beware an overly formal or legalistic approach in construing them. Furthermore, reports of this type should be evaluated and construed in their full context,

[5] In cases where the Secretary of State seeks to withdraw a concession, or admission, the Tribunal should adopt a broad approach, taking into account in particular its inquisitorial jurisdiction, the public law overlay, the imperative of considering all relevant evidence and fairness to the litigant.

ANONYMITY

We maintain the anonymity order made previously under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless the Upper Tribunal or a Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the Appellant. This prohibition applies to, amongst others, all parties and their representatives.

DECISION [No 2]

Introduction

1. This decision determines two main questions. The first is whether, given the prevailing conditions in Mogadishu, Somalia, the Appellant, a journalist, is at risk of persecution and/or breach of Articles 2 and 3 ECHR in the form of attacks inflicting serious injury or death in the event of his enforced return there. The second is the interesting question of law of whether the Appellant can be denied refugee status in the United Kingdom on the ground that it is reasonable to expect him upon return to engage in employment other than his chosen occupation of journalism. These questions are determined in a context where the Upper Tribunal has recently promulgated updated guidance on conditions prevailing in Mogadishu: see MOJ and others (Returns to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC)

2. The contours of this appeal emerge from the following passages in the decision of the First-tier Tribunal (“ FtT ”):

“ It is conceded by the Respondent that in general journalists may be at risk in Mogadishu. It is an established principle of refugee law that protection is to be refused if it is shown that the person seeking asylum can reasonably be expected to take measures to avoid the threat of persecution upon his return to his country of origin. This principle finds expression, for example, in the requirement for an applicant to demonstrate that it would not be reasonable, or that it would be unduly harsh, to expect him to relocate to an area where he would not face the real risk of persecution …..

It is common ground that this Appellant is a qualified teacher and that he practised as such prior to training as a journalist. It would not, in my view, be unreasonable to expect him to change his profession and to return to teaching, in order to avoid any risk he may face merely on account of being a journalist practising in Mogadishu …

I am further satisfied that even if the Appellant could show that the only reason that would compel him to change profession would be a fear of persecution he would not be entitled to international protection under the Refugee Convention …..

The Appellant’s change of profession by returning to teaching would not involve a violation of or a denial of a right enshrined in the Convention. The right to practice ones profession does not enjoy protected status under the Convention ……

In the circumstances I find that to the extent that this Appellant would be at risk merely on account of his continuing to practice as a journalist in Mogadishu, it would be reasonable to expect him to revert to teaching as a means of earning and income and, hence, avoid any risk that would befall him as a journalist at the hands of the Al-Shabaab. ”

[Emphasis added.]

Al-Shabaab (“AS”) is a radical Islamist group, a terrorist organisation.

The Proceedings To Date

3. The Appellant, who benefits from the protection of anonymity, is a national of Somalia, aged 29 years. This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State ”), dated 02 January 2014, whereby the Appellant’s application for asylum was refused. The Appellant appealed to the First-tier Tribunal (the “ FtT ”) which, by its determination promulgated on 18 March 2014, affirmed the decision of the Secretary of State. The ensuing grounds of appeal raised the three issues of the asserted risk to the Appellant as a member of a group, namely journalists in Somalia; the Appellant’s likely conduct on return to Somalia and, in particular, whether he would, or would be obliged to, transfer to a different profession; and the historical factual issue of whether the Appellant had been specifically targeted by AS. Permission to appeal was duly granted.

4. The error of law hearing before the Upper Tribunal was held on 29 May 2014. Upper Tribunal Judge Dawson held that the decision of the FtT was vitiated by error of law (see Appendix 1). The Judge, having recorded a limited concession by the Secretary of State’s representative, ruled, in substance, that the FtT had not properly directed itself in law in relation to the matters raised in the first two grounds of appeal: see especially [13] – [14] of the decision. We draw particular attention to the following passages:

“ [17] What is missing from the determination is a finding whether the Appellant would continue as a journalist …

There will need to be further evidence on this aspect ….

[18] If it is found that the Appellant will resume his occupation as a journalist on return, the issue will be whether it would be reasonable to expect him to change his career and to resume his earlier [teaching occupation] or another occupation. ”

These passages shape the essential framework of the exercise of remaking the decision of the FtT which now falls to this Tribunal.

Preserved Findings

5. Upper Tribunal Judge Dawson expressly preserved a series of findings of fact contained in the determination of the FtT, namely:

(i) The Appellant worked as a journalist for Radio “X” in Somalia.

(ii) He did not at any stage come to the adverse attention of AS: his evidence to the contrary was a total fabrication.

(iii) He did not receive any threats on his mobile phone from AS.

(iv) None of his colleagues at the radio station was targeted or harmed before the Appellant left Mogadishu.

(v) The Appellant’s wife had not relocated to a place of safety.

(vi) The Appellant’s sister was aware of his intention to travel to the United Kingdom, confounding his claim to the contrary.

(vii) Little weight could be attributed to the documentary evidence on which the Appellant relied in support of his assertion that AS had threatened him.

(viii) Increased income was his initial motivation in training to become a journalist.

The preservation of these findings obviously has a bearing on the remaking exercise.

Further Finding

6. By reason of the manner in which the appeal hearing unfolded, it became necessary for the Tribunal to adjourn for the purpose of providing a preliminary ruling relating to the admission of fresh evidence (see Appendix 2). When making this ruling we found it convenient to promulgate our findings in relation to the Appellant’s likely future employment in the event of returning to Mogadishu. At this juncture, we draw attention to the following passage in the Tribunal’s error of law determination:

“ What is missing from the determination [of the FtT] is a finding whether the Appellant would continue as a journalist and it is unclear that the Judge concluded the Appellant would practice as such on return. There will need to be further evidence on this aspect ……………

If it is found that the Appellant will resume his occupation as a journalist on return, the issue will be whether it would be reasonable to expect him to change his career and to resume his earlier or another occupation. ”

See Appendix 1, [17] – [18]. Sequentially, the next decision of the Tribunal followed an uncompleted remaking hearing. This contains our finding on the issue of future employment.

We refer particularly to [24] – [27] of Appendix 2 and, in particular, our conclusion at [27]:

“ In summary, therefore, we find as a matter of probability that the Appellant will, if returned, continue to pursue his interest in a career in broadcasting and media related activity. This would include a creative role in terms of research and writing for broadcasts. To this extent there will be a journalistic element. We consider further that he is likely to secure employment in this field. ”

The hearing of the appeal was duly completed, on a later date, against this backdrop.

The Evidence Considered

7. What follows is a digest of the relevant documentary evidence, which we have considered in full, with some analysis and commentary. We confine ourselves to highlighting its salient features. We would add that as a result of our initial finding – see [6] above – the focus at this stage is mainly on the so-called “country evidence” relating to the risk to journalists practising their profession in Mogadishu and beyond.

8. We begin with certain aspects of the Appellant’s evidence which were not challenged. He is aged 29 years and a national of Somalia. Prior to his arrival in the United Kingdom, in October 2013, he worked as a teacher and, latterly, as a journalist. In the latter capacity he was employed by a radio entity presenting news reports and sports and childrens’ programmes. He claims to have been informed by fellow journalists that in Somalia –

“ …. they have to live in hiding and they have to keep changing their mobile numbers in order to stay safe and take many precautions in order to stay alive. ”

Adverting to the reported murder of a journalist by AS in June 2014, he avers:

“ I was very angry about what had happened and if I was in Somalia right now I would have broadcast this news myself on the local radio. From my point of view I would have wanted to inform the people of the truth behind these innocent people being killed … the journalist who was killed on 21 June 2014 was a friend of mine …..

His death has motivated me even more to continue pursuing my life as a journalist as I want to highlight the brutalities inflicted on innocent people. ”

Continuing, the Appellant makes the case that journalists are under threat not only from the terrorist organisation AS but the “ Government authorities ” also. In support of this, he instances one specific case of a radio entity being closed by the security forces for a matter of some days, associated with the detention of the director and other journalists, evidently short lived. While the Appellant follows this with claims about other comparable incidents, he provides no particulars. He formulates his case based on risk of return in the following general terms:

“ …. If I am returned to Somalia I would face ill treatment by the Government in Mogadishu and other Government controlled areas and [AS] in their areas ….

I cannot relocate to any other part of Somalia and live a relatively normal life without being ill treated, for being a journalist. ”

9. In its Country of Origin (“ COI ”) report on Somalia of August 2013, the Home Office noted the continuing threat posed by AS. In this context, we refer to the recent review of the evidence by the Upper Tribunal in MOJ and Others . The COI report quotes from a US State Department (“ USSD ”) 2012 report containing the following passage:

“ Journalists were subjected to violence, harassment, arrest and detention in all regions. The National Union of Somali journalists (NUSOJ) reported 18 journalists were killed across the country in 2012 and 14 were wounded in Mogadishu. According to the Somaliland Journalists Association (SOLJA), more than 79 journalists were arrested in Somaliland during the year. ”

In the same year the NUSOJ reported:

“ Media freedom, a cornerstone for democracy and good governance, has constantly been curtailed to unacceptable degrees …..

Killing of journalists in Somalia is a common and normal practice. Mogadishu continues to record the highest levels of attacks against journalists and news media organisations in the country. ”

In this context we refer also to a BBC report of July 2012 and a Freedom House report of September 2012. The latter notes that Radio Mogadishu has the support of the transitional Government. The COI report further notes the killing of a journalist in Mogadishu on 18 January 2013. It also draws on the report of the Danish Norwegian fact finding mission (May 2013):

“[AS] has taken responsibility for the killings of only journalists from the state run Radio Mogadishu. Who is behind the rest of the killings of journalists is not clear ….

It was added that most journalists will not report negatively about [AS]”.

10. There is a more recent Home Office Report, entitled “Country Information and Guidance” (“CIG”), dated December 2014. This incorporates certain passages from an equally up to date report produced by the United Nations High Commissioner for Refugees (“UNHCR”). Under the rubric “ Potential Risk Profiles ” UNHCR identifies a total of twelve categories. One of these is defined in the following terms:

“ Individuals in certain professions such as journalists ….. ”

This is prefaced by these words:

“ UNHCR considers that persons with any of the profiles below, or a combination thereof, may be in need of international protection in the sense of the [Refugee Convention] ……”

Notably, the Home Office CIG report adopts this without question or qualification. Advice to decision makers is couched in the following terms:

“ With regard to persons who come within these heightened risk categories, decision makers must make a careful assessment of a person’s overall circumstances. ”

Risk to journalists was not one of the issues considered in MOJ and Others .

11. An overview of the subject of risk to journalists can be undertaken by reference to other pieces of evidence provided. These include in particular the reports of the Somalia journalist organisations noted in the COI 2013 report and the USSD report quoted therein. The evidence records that between 1992 and the end of 2014 56 journalists were killed in Somalia. The majority of the killings were in Mogadishu. It is of some note that the journalist murdered in January 2013 ( supra ) was working for a particular privately owned radio organisation which has evidently been the focus of a disproportionate number of attacks. It is described as the “ most vulnerable outlet to assassinations targeting Somalia journalists ”. There are various strands of evidence relating to the killings of individual journalists. We find it difficult to distil from these any clear and consistent pattern. Considering the evidence as a whole, most of these killings would appear to have been planned and targeted attacks. According to the NUSOJ report, in 2014 there were five murders of “ media workers ” and attacks injuring seven “ journalists : these figures apply to the entirety of the country.

12. The NUSOJ report makes a distinction between areas controlled by the federal government and those under the control of AS. The ability of journalists to work more freely in the former areas is acknowledged. This would include Mogadishu. However, there is criticism of state agencies:

“ …. The authorities restrict their ability to work freely through the police and judiciary system, including the harassment of media that criticise them. [AS] has been able to threaten and eliminate journalists in government controlled neighbourhoods. ”

The report claims that “ crimes ” against journalists have been committed with impunity. It makes the further claim that in 2014, 47 journalists were arrested, five media buildings were attacked and repressive legislation was enacted. While NUSOJ, unsurprisingly, is critical of this conduct on the part of state agencies, there is no suggestion that journalists have been attacked, ill-treated or murdered by any such agency.

13. At this juncture we consider the discrete issue of how the risk to journalists in Somalia has evolved in recent years. The year 2012 was described in the Home Office CIG Report (2013) as “ the deadliest year on record for the country’s journalists ”. The “ Committee to Protect Journalists ”, which is based in Somalia, has prepared a table documenting that 12 journalists were killed in Somalia in 2012. Of these, seven of the killings took place in Mogadishu; three of the victims worked for a particular media network perceived to be anti-AS; one worked for the pro-government Radio Mogadishu; one worked for Somalia National TV; and the others worked for other media outlets. In the year 2013, four journalists were killed: three of the killings were perpetrated in Mogadishu; one of the victims worked for the aforementioned anti-AS media organisation; and another worked for Radio Mogadishu. In the year 2014, there were four deaths. One of these occurred in Mogadishu and the other three elsewhere. Notably, the annual report of NUSOJ describes these victims as “ media workers ”: we shall revisit the significance of this terminology. There is no evidence of any deaths in 2015 to date.

The Secretary of State’s Decision

14. At this juncture it is appropriate to consider the impugned decision of the Secretary of State. The following passages are particularly significant :

“ [46] The above information indicates that journalists and those who work in the media are generally at risk in Somalia, with those working for state-owned media companies at the greatest risk. It is noted that [Radio X] is an independent radio station however and is not linked in any way to the Somali Government ….

[47] It is also noted that you worked as a reporter for [Radio X] from May 2011 until September 2013 ….

Before this you worked as a teacher for three years, teaching mathematics and Somali language …..

[48] It is therefore concluded that although working as a reporter may place you at risk in Somalia, it is not a necessary risk, as you have transferable skills as a teacher which would allow you to live and work peacefully in your home country. When this was put to you in interview the only reason you cited for not pursuing a career as a teacher was that the salary is less than that of a reporter. ”

The “ above information ” is an excerpt from the 2013 Home Office publication entitled “ Country Information and Guidance: Somalia ” (”CIG”). Drawing on identified sources, this report contains the following salient passages:

“ Despite the violence, dozens of radio stations aligned with particular factions continued to broadcast in Mogadishu and in other parts of the country. The TFG [Transitional Government] continued to support Radio Mogadishu ……

This includes journalists from popular stations …. who have found it challenging to operate under [AS] ……

Journalists were subjected to violence, harassment, arrest and detention in all regions. The National Union of Somali Journalists reported 18 journalists were killed across the country in 2012 and 14 were wounded in Mogadishu … This was the deadliest year on record for the country’s journalists …..

Concerning the big number of assassinated journalists, it is not justified to say that [AS] is targeting this group specifically, according to the international NGO(B) Mogadishu. [AS] has taken responsibility for the killings of only journalists from the state run Radio Mogadishu . Who is behind the rest of the killings of journalists is not clear. In this connection it should be mentioned that Shabelle Media has had a conflict for a long time with the Government. It was added that most journalists will not report negatively about [AS].”

[Emphasis added.]

In its determination, the FtT stated, at [15]:

“ It is conceded by the Respondent that in general journalists may be at risk in Mogadishu. ”

We consider it clear that the Judge was not here referring to a concession made by the Respondent’s representative at the hearing. He was, rather, adverting to those parts of the decision letter reproduced above.

15. The framework for the Tribunal’s determination of the first question identified in [1] above is conveniently delineated in the following passage in the Appellant’s skeleton argument:

“ The Appellant invites the Upper Tribunal to find that, on the basis of the ……. documents and evidence, it is overwhelmingly clear that journalists (and those who work in the media) are at risk in Somalia, whether from state or non-state actors. ”

On behalf of the Appellant, it is further submitted that his claim has been “ conceded ” by the Secretary of State in the decision letter.

16. The submission of Ms Rhee on behalf of the Secretary of State, in our opinion, accurately encapsulates the key question to be addressed by the Tribunal in determining the first issue. Ms Rhee submitted that the evidence does not support a finding that a person employed as a researcher, writer or presenter in the broadcasting sector without more and with no history of working as an investigative journalist for a state run media organisation is likely to have imputed to him any political opinion exposing him to the risk of a targeted attack. Furthermore, we concur with Ms Rhee that one of the essential exercises for the Tribunal must is to consider and determine whether, from the perspective of risk, a distinction is to be made between journalists working for a pro-government media organisation and those who do not. We further consider that we must examine, and decide, the question of whether only certain types of workers in the media sector are at risk. In addition, we must consider whether any distinction is to be made between Mogadishu and the rest of Somalia. These issues require of the Tribunal a careful analysis of all the evidence bearing on the question of risk, simultaneously giving effect to the lower standard of proof which applies in asylum cases.

The Risk Issue

17. Having found that the Appellant is likely to engage in journalistic activities, for the purpose of earning a living, in the event of returning to Mogadishu – see [6] above – we pose the question required by Article 1A(2) of the Refugee Convention: does he have a well founded fear of being persecuted in Mogadishu for reasons of political opinion? We make clear at this juncture that the Appellant’s case has been advanced exclusively on the ground of political opinion: no other ground or status protected by the Refugee Convention is in play. The onus rests on the Appellant and he must establish a real risk, a reasonable degree of likelihood, of persecution to a standard somewhat lower than the balance of probabilities.

18. The Refugee Convention reason invoked by the Appellant is that of political opinion. His case is that the pursuit of his chosen career in journalism will involve the expression of political opinions and is it at least partly driven by political conviction related to conditions prevailing in Somalia. Having considered with care his several accounts and having had the advantage of assessing his demeanour, we accept this and find accordingly.

19. Next we take into account the undisputed evidence relating to media broadcasting in Somalia. It is clear that there are media organisations which are, or are perceived to be, pro-AS, anti-AS, pro-government and anti-government. It seems to us uncontroversial that journalists involved in the activities of researching, interviewing, reporting and presenting engage in the expression of views and opinions which are, or are perceived to be, of one or more of these orientations. We are satisfied that these are plainly opinions of a political genre . This analysis probably applies to all parts of the globe. We find further that the Appellant has established, to the requisite degree that he will foreseeably engage in journalism of this kind following his return to Mogadishu. He will not refrain from doing so, whether voluntarily or involuntarily. In addition, we find that pro-government or anti-AS opinions, both of which are probably in substance indistinguishable, are attributed to all those who work for media organisations, irrespective of their specific role or activities. Such opinions are inherently political in nature. We consider that this broad assessment applies to all media organisations in all areas of Somalia. Accordingly, the Appellant’s case overcomes the threshold of falling within the ambit of the Refugee Convention.

20. We turn now to the question of real risk of persecution. This requires of the Tribunal an evaluative assessment of all the evidence, together with a predictive evaluative judgment in relation to future events. The Tribunal must also give effect to the specific finding noted in [6] above. We observe that if the Appellant’s case is accepted, no journalist who will foreseeably engage in the expression of political opinion, or to whom such opinion may be imputed, in his or her occupation could be safely removed to Mogadishu or, logically, to any part of the country. The main question is: what further findings and conclusions are impelled by the evidence?

21. We conclude that the evidence supports the following findings, some of which are specific and others general in nature:

(a) Radio Mogadishu is perceived by AS to be pro-government, state run.

(b) Journalists working for Radio Mogadishu are at real risk of being targeted by AS and killed or seriously injured in consequence.

(c) AS is the only identified group, or faction, which engages in such attacks and killings.

(d) AS has perpetrated some, but not all, of the reported killings of journalists and other workers in the media sector.

(e) The perpetrators of the killings of other journalists are not known.

(f) Those who work for media organisations other than Radio Mogadishu which publish anti-AS material or have an imputed anti–AS stance or inclination are also at risk of being targeted by AS and killed or seriously injured in consequence.

(g) All of the attacks upon and murders of both journalists and “ media workers ” (the language employed in one of the NUSOJ reports) documented in the reports digested above have been motivated by the occupation of the victims. The expression of political opinions is an intrinsic feature of the daily lot of most of those who work in the media sector. Furthermore, we find that the aggressors impute political opinions to all such workers in any event. We consider that there is a direct nexus between the espousal and/or expression of political opinions, actual or imputed, by the victims and their death or injury. There is no other identifiable motive or ground and none was suggested on behalf of the Secretary of State.

(h) We find no sustainable basis for making any distinction between journalists and “ media workers ” (and we were not invited to do so). We define this term as all those who work in the media sector. Thus the members of the endangered group are not strictly confined to journalists in the conventional sense. Thus the analysis in [20] above extends to this wider group.

(i) We find that there is nothing selective about the attacks on the members of the endangered group. In particular, we find no sustainable basis for confining those at risk to persons who work for media organisations perceived to be either pro-government or anti – AS (insofar there is any distinction between the two). In this sense, the attacks which have been perpetrated and which, predictably, will continue are indiscriminate. We reject the Secretary of State’s argument to the contrary.

(j) Thus the risk is generated by membership of the endangered group without more.

(k) We find no basis for any sustainable distinction between Mogadishu and other areas of Somalia.

We have made these findings on the basis of all the evidence presented. While the evidence was undisputed per se , it has required analysis, interpretation and evaluation. The Tribunal has performed this task. While we have noted some differences and inconsistencies in the reports, we consider these to be minor and inconsequential. The reports are, broadly, united and consistent in their exposition of the factual issues associated with our findings tabulated above.

The Concession Issue

22. One discrete strand of the Appellant’s case is that the Secretary of State’s letter concedes that he will be at risk of persecution for a Convention reason, qua journalist, in the event of returning to Mogadishu: see the relevant excerpts reproduced in [14] above. We consider it trite that the construction of the relevant passages is a question of law for the Tribunal and, further, they must be considered in their full context. This includes in particular the underlying and surrounding evidence. The letter is expressly and inextricably linked with the evidence to which it refers, which we have outlined in [13] above.

23. We consider that documents such as the CIG, the COI and kindred reports should not be forensically construed by the kind of exercise more appropriate a contract, deed or other legal instrument. Reports of this kind are written by laymen, in layman’s language, to be read and understood by laymen. Thus courts and tribunals must beware an overly formal or legalistic approach in construing them. Furthermore, reports of this type must be evaluated and construed in their full context, which – as in this case – includes previous and related reports upon which the text in question draws. Thus, in construing the relevant passages of this particular report, we must consider also the COI report published more or less simultaneously, the USSD report reproduced in part in the COI report and the other information sources identified in [9] – [13] above. These are all strands of the same web. We also take into account that reports of this kind, dealing as they do with matters of life and death and rights under Articles 2 and 3 ECHR, are generally prepared with care and couched in carefully selected terms. Approached in this way, we construe the Secretary of State’s decision letter as acknowledging that journalists as a group in Somalia are , at present, at risk of persecution and/or treatment infringing Articles 2 and 3 ECHR.

24. As we noted in our first judgment in this appeal, the Secretary of State is desirous of withdrawing this concession: see the reported version, [2015] UKUT 00228 (IAC). Given our findings in [20] and our analysis in [22], this issue has been rendered moot. However, we consider it appropriate to express our view that the task for the Tribunal is not necessarily the narrow one of ruling on whether the concession can legitimately be withdrawn. This is in truth something of a peripheral battle, merely distracting attention from the central task of the Tribunal, which is to consider the evidence in its totality, including evidence postdating the Secretary of State’s decision and to make its independent assessment of risk accordingly. This we have done in the exercise yielding the findings rehearsed above. To this we would add that the Tribunal exercises an inquisitorial jurisdiction, with a significant public law overlay, to be contrasted with the lis inter-partes approach which characterises private law litigation. The topic of withdrawal of supposed concessions, or admissions, seems to belong more readily to the latter sphere. It may be that previous judicial examination of this subject has rather neglected these considerations. We would add that the imperative of considering all relevant evidence and fairness to the litigant will always be obligatory considerations when this issue arises.

Risk From State Actors

25. At this juncture we turn to consider the discrete question of the risk that the Appellant will be persecuted by state actors for a Convention reason. While we acknowledge that this formed part of the Appellant’s case, we consider that it was canvassed somewhat faintly and we find the explanation for this diffidence in the supporting evidence invoked.

26. We note in particular the criticisms in the NUSOJ publications of state interference in the broadcasting sector in 2014. This evidence, however, suffers from certain intrinsic limitations. At its height, it suggests the detention by state agencies of a small number of journalists for unspecified reasons and for short periods, followed by release; one completed prosecution and conviction, followed by an almost immediate presidential pardon of the two journalists concerned; a rather vague objection to the enactment of a new law in one particular province or region; a handful of cases of outstanding charges against journalists; and the revocation of four broadcasting licences in the entire country, followed by the restoration thereof in at least one case.

27. Based on this evidence, the Appellant makes the further case that if returned to Mogadishu, he will be exposed to a real risk of persecution by state agents based on his political opinion. We reject this claim. In our estimation, the supporting evidence falls measurably short, both quantitatively and qualitatively, of discharging the Appellant’s burden in this respect. The evidence is sparse, unilateral, probably driven by a particular viewpoint and lightly particularised. At its zenith, it merely establishes some isolated instances of state action against some journalists and media entities which has invited criticism from the journalistic profession. We consider that it does not partake of the quality or depth necessary to warrant a finding of persecution of journalists by state actors..

The Risk Issue: Conclusion

28. On the grounds and for the reasons elaborated above, we conclude that the Appellant has discharged the burden of establishing that in the event of returning to Mogadishu, Somalia, there is a real risk that by virtue of his predicted employment in the media sector he will be persecuted for the Refugee Convention reason of political opinion and/or that a breach of his rights under Articles 2 and 3 ECHR will occur.

Political Opinion and the Modification of Conduct Issue

29. The Appellant’s case (in our words) was that if the Secretary of State were to refuse his asylum application on the basis that it would be reasonable to expect him, upon returning to Mogadishu, to avoid risk by not engaging in his chosen career of journalism, this would be unlawful. This issue is triggered by the assessment in the Secretary of State’s decision that it would not be “ necessary ” for the Appellant to expose himself to risk in light of his “ transferable skills as a teacher ”. This assessment was duly endorsed by the FtT. The question is whether it is sustainable in law

30. On behalf of the Appellant, it was submitted by Mr Chelvan (in terms) that involuntary modification of conduct is an inadmissible consideration and (we would add) in effect a misdirection in law. This argument preys in aid, mainly, the decision of the Supreme Court in HJ (Iran) v SSHD [2011] 1 AC 596 and the decision of the Australian High Court in Minister for Immigration and Border Migration v SZSCA [2013] FCAFC 155. Reliance was also placed on C-71/11 and C-99/11 Germany v Y and Z [2013] 1 CMLR 5. Article 10 of the Qualification Directive was also invoked. The Appellant’s case on this issue was supported by UNHCR, intervening. The core submission of Ms Demetriou QC was that it is unlawful to deny an asylum applicant refugee status on the basis that they could be expected to conceal, or exercise discretion or restraint in relation to, one of the core protections provided by the Refugee Convention namely race, religion, nationality, membership of a particular social group or political opinion, in order to avoid persecution. It was argued that asylum cannot be refused on a basis which expects or requires the applicant to disavow a right, or status, protected by the Convention. This argument recognises that the practice of a particular profession is not protected by the Convention. However, it is emphasised that political opinion is a protected ground and, further, that the Appellant’s chosen profession of journalism is indissociable from his actual or imputed political opinion. As a result, to expect or require him to relinquish his profession contravenes the Convention as it directly undermines one of the protections which it affords.

31. On behalf of the Secretary of State, Ms Rhee accepted that asylum applicants cannot be required to relinquish their religion, racial or sexual identity or their political opinions in order to avoid persecution in their country of origin. It was acknowledged that, following the decision of the Supreme Court in HJ (Iran) , to expect discretion of asylum seekers whose conduct was driven by a Convention – protected reason would be to deny them their fundamental right to be who they are. Notwithstanding, Ms Rhee submitted that the correct interpretation of HJ (Iran) is that a compulsion to alter one’s conduct in order to avoid persecution does not per se amount to persecution. Rather, drawing on the opinion of Lord Dyson at [110] – [118], it was argued that in order to do so it must involve the forfeiture of a fundamental human right. This submission, we observe, conveniently highlights the main interface between the parties, having regard to the wider principle which the Appellant and UNCHR seek to draw from HJ (Iran) .

32. The Qualification Directive. We take as our starting point Council Directive 2004/83/EC, the soi-disant Qualification Directive. This prescribes the minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons otherwise in need of international protection, together with the content of the protection granted. The Directive gives expression to the EU’s common policy on asylum, including the Common European Asylum System. It seeks to achieve the approximation of rules on the recognition of refugees and the content of refugee status. It recognises that the Refugee Convention and Protocol provide “ the cornerstone of the international legal regime for the protection of refugees ”. By prescribing minimum standards for the definition and content of refugee status, it seeks to “ guide ” Member States in the application of the Convention.

33. For present purposes, Articles 9 and 10 are the most important provisions. Before turning to consider them, we would highlight that the definition of “ refugee ” in the Directive mirrors that contained in the Refugee Convention. The Directive, in contrast to the Convention, defines the concept of an act of persecution, in Article 9(1):

“ Acts of persecution within the meaning of Article 1A of the Geneva Convention must:

(a) Be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the [ECHR] , or

(b) Be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). ”

In Article 9(2) there is a non-exhaustive list of acts which may fall within the aforementioned definition. Article 9(3) provides that there must be a connection between the reasons for persecution (see Article 10) and the acts of persecution. Article 10 stipulates that Member States shall take specified factors into account when assessing the reasons for prosecution. As regards political opinion, Article 10(1)(e) provides:

“ The concept of political opinion shall in particular include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in Article 6 and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. ”

These words embrace the twin concepts of actual and imputed political opinion. Both are protected.

34. This last mentioned protection is a reflection of the long established norm that freedom of expression is a core value of democratic societies, recognised in a series of international instruments. Furthermore, we consider that it is clear that the Refugee Convention ground of political opinion is of the same pedigree. Bearing in mind the context of the present appeal, it is also appropriate to acknowledge that the question of whether an opinion has the adjectival quality of political must take into account the conditions prevailing in the individual’s country of origin. In Somalia, journalists and kindred workers in the media industry have become embroiled in the continuing conflict. They have been sucked into it by reason of their occupations. Their occupation is the stimulus for the imputation to them of political opinions. As appears from our findings above, we consider that each is tarred with the same brush. Furthermore, in the words of the Canadian Supreme Court in Canada (Attorney General) v Ward [1993] 2 R.C.S. 689, at [746]:

“The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors… a claimant may be seen as a threat by a group unrelated, and perhaps even opposed, to the government because of his or her political viewpoint, perceived or real.”

35. SSHD v Ahmed [1999] EWCA Civ 3003. In this case the Immigration Appeal Tribunal ruled that a Pakistani Ahmadi did not qualify for protection, reasoning that it would not be unreasonable for him, upon returning to Pakistan, to make some allowances for the situation there, including the sensitivities of others and to exercise a measure of discretion in his conduct and in the profession of his faith. The Special Adjudicator had found that he would be vocal in the proclamation of his Ahmadi beliefs and would follow the command of his spiritual leaders irrespective of his place of residence in Pakistan. On appeal, the Court of Appeal placed emphasis on the central, single question, namely –

“ ….. Is there a serious risk that on return the applicant would be persecuted for a Convention reason? ”

The Court supplied the following answer:

“ If there is, then he is entitled to asylum. It matters not whether the risk arises from his own conduct in the country, however unreasonable. It does not even matter whether he has cynically sought to enhance his prospects of asylum by creating the very risk on which he then relies. …… ”

[Emphasis added.]

Thus the focus must be on the future conduct of the person concerned. In all cases, this requires a finding or, perhaps more accurately, an evaluative predictive judgment which, we consider, is to be undertaken according to the civil standard of the balance of probabilities.

36. HJ (Iran) . In determining the forced modification of conduct issue we consider the key domestic decision to be that in HJ (Iran) . This case involved two homosexual men who would suffer persecution in their respective countries of origin if they lived openly as homosexuals. The essential question was whether they could lawfully be denied refugee status on the ground of an expectation that they could conceal their homosexuality by discretion and self-restraint. The Supreme Court allowed their appeals. Lord Hope noted that the characteristic in play was an immutable one, unlike a person’s religion or political opinion: see [11]. It is of particular note that Lord Hope cited with approval the passage in Ahmed quoted above.

“ … The critical question [is] : if returned, would the asylum seeker in fact act in the way in which he says he would and would thereby suffer persecution? If he would, then, however unreasonable he might be thought for refusing to accept the necessary restraint on his liberties, in my judgment he would be entitled to asylum. ”

Lord Hope distilled from this passage two propositions, [18]:

“ The first is that attention must be focused on what the applicant will actually do if he is returned to his country of nationality. The second is that the fact that he could take action to avoid persecution does not disentitle him from asylum if in fact he will not act in such a way as to avoid it. That is so even if to fail or to refuse to avoid it would be unreasonable. ”

It is appropriate to highlight at this juncture the key finding which we have made: the Appellant will , as a matter of probability, work in the media sector upon return to Mogadishu. In his case, the relevant “avoiding action” on which the spotlight is placed is that of engaging in an alternative occupation. We have found that the Appellant will not take this avoiding action. Lord Rodger, concurring with this approach, elaborated by identifying its rationale, at [76]:

“ No one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution. Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution. Such an assumption about gay men and lesbian women is equally unacceptable. Most significantly, it is unacceptable as being inconsistent with the underlying purpose of the Convention since it involves the applicant denying or hiding precisely the innate characteristic which forms the basis of his claim of persecution …. ”

[Emphasis added.]

The rationale of the Refugee Convention also emerges in the following passage, in [82]:

“ To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. ”

In short, the protected right must prevail.

37. Lord Dyson formulated the guiding principle in the following way, at [109]:

“ It is well established that in asylum cases it is necessary for the decision maker to determine what the asylum seeker will do on return …..

Thus, the asylum seeker who could avoid persecution on his return, but who (however unreasonably) would not do so is in principle a refugee within the meaning of the Convention. ”

[Our emphasis.]

Notably, in formulating this principle, Lord Dyson (in common with Lord Hope) referred to Ahmad . Continuing, Lord Dyson stated in [110]:

“ If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. ”

Turning to the context of the appeal, he continued:

“ The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country. ”

Next, Lord Dyson noted the purposive approach to the meaning of “ refugee ” adopted by the Australian High Court in SC395/2002 v Minister for Immigration and Multi-Cultural Affairs [2003] 216 CLR 473, at [41]:

“ The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention. ”

Significantly, Lord Dyson continued:

“ Like Lord Rodger, I would follow this approach. ”

We are prompted to repeat our observation above: protection of the right in question must prevail. To this we would add that this is achieved by the grant of refugee status. The effect of such grant is to enable the person concerned to exercise the right freely in the country of refuge.

38. Before extending our consideration of the opinion of Lord Dyson, we pause. In our estimation, it is clear that Lords Hope, Rodger and Dyson were ad idem . We detect no distinction in the dominant principle espoused by each. We interpose this analysis because the submissions of Ms Rhee on behalf of the Secretary of State rather sidestep the core of their Lordships’ opinions as we have exposed this above. Notably, as regards the decision in HJ (Iran) , the submissions of Ms Rhee focus on the remaining section of Lord Dyson’s opinion, in particular [113] – [115]. Ms Rhee invites us to distil from these passages the proposition that a compulsory adjustment of a person’s behaviour in order to avoid persecution will not constitute persecution unless it entails the forfeiture of a fundamental human right. In [113], having reflected on the “ somewhat different analysis of the problem ” in New Zealand, Lord Dyson reiterated:

“ An interpretation of Article 1A(2) of the Convention which denies refugee status to gay men who can only avoid persecution in their home country by behaving discretely (and who say that on return this is what they will do) would frustrate the humanitarian objective of the Convention and deny them the enjoyment of their fundamental rights and freedoms without discrimination. ”

We consider this passage to be consonant with what we have described as the dominant principles, which the court espoused unanimously.

39. In [114] – [115], Lord Dyson noted that the New Zealand approach entails an analysis of the claimant’s conduct from the perspective of whether it is “ at the core of the right or at its margins and whether the prohibition or restriction imposed by the state is lawful in terms of international human rights law ”, quoting from [2005] INLR 68, at [120]. We consider the conjunctive in this quotation, which we have highlighted, to be significant. Furthermore, the discursive, or obiter , character of this part of his Lordship’s opinion emerges clearly in the ensuing section, at [115]:

“ It is open to question how far the distinction between harmful action at the core of the right and harmful action at its margin is of relevance in cases of persecution on grounds of immutable characteristics such as race and sexual orientation. But it is a valuable distinction and there may be more scope for its application in relation to cases concerning persecution for reasons of religion or political opinion. ”

In addition to our obiter analysis of this passage, we find nothing in it detracting from or diluting the dominant principle to which Lord Dyson subscribed ( supra ). This we consider to be reinforced in what follows in [116] – [118] and, in particular, the following passage in [118]:

“ Even if it could be imagined that Anne Frank, as an asylum seeker, would not objectively have been at risk of being discovered in the attic, she would nevertheless have had a well founded fear of serious harm, a fear not eliminated by her decision to conceal her identity as a Jew and live in the attic. ”

Thus, as Lord Dyson acknowledged in [117]:

“ In other words, the threat of serious harm and the fear of it will remain despite the avoiding behaviour. ”

In short, we find no merit in the Secretary of State’s “ more is needed ” argument.

RT (Zimbabwe) .

40. The Supreme Court soon had the opportunity to revisit this subject in this case. The Respondents (and, in one case, the Appellant), based their asylum claim on their unwillingness or inability to positively demonstrate their loyalty to the Mugabe regime in the event of their forced repatriation to Zimbabwe. The Court of Appeal found the distinction between individuals whose political beliefs formed a core part of their lives and those for whom political beliefs were merely marginal to their existence misconceived, as the following passage illustrates:

“ The question is not the seriousness of the prospective maltreatment (which is not at issue) but the reason for it. If the reason is political opinion, or imputed political opinion, that is enough to bring it within the Convention. In this case we are concerned with imputed political opinions of those concerned, not their actual opinions. Accordingly, the degree of their political commitment in fact, and whether political activity is of central or marginal importance to their lives, is beside the point ….

If the Tribunal finds that he or she would be willing to lie about political beliefs, or about the absence of political beliefs, but that the reason for lying is to avoid persecution, that does not defeat the claim ……. ”

[Our emphasis]

See [2010] EWCA Civ 1285 at [36]. In espousing this approach, we consider that the Court of Appeal rejected the analysis of Elias LJ in TM (Zimbabwe) [2010] EWCA Civ 916, at [41].

41. The Supreme Court dismissed the Secretary of State’s appeal. We draw attention, firstly, to the statement of Lord Dyson at [25]:

“ It is well established that there are no hierarchies of protection amongst the Convention reasons for persecution and the well founded fear of persecution test set out in the Convention does not change according to which Convention reason is engaged ….

Thus the Convention affords no less protection to the right to express political opinion openly than it does to the right to live openly as a homosexual. The Convention reasons reflect characteristics or statuses which either the individual cannot change or cannot be expected to change because they are so closely linked to his identity or are an expression of fundamental rights. ”

[Emphasis added.]

Lord Dyson then turned to address the argument that the HJ (Iran) principle does not apply to the Convention ground of political opinion in the case of a person to whom the relevant interference would affect –

“ … the margin, rather than the core, of the protected right and would not cause him to forfeit a fundamental human right. ”

Lord Dyson rejected this distinction. In doing so, he reasoned that the right not to hold a political opinion is a fundamental one, continuing at [42]:

“ A focus on how important the right not to hold a political or religious belief is to the applicant is wrong in principle. ”

Lord Dyson continued, at [43]:

“ As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs. This is as important as the freedom to hold and (within certain defined limits) to express such beliefs as they do hold. ”

Lord Dyson illuminated this analysis by reference to the sinister “thought police” in George Orwell’s novel 1984. Notably, the distinction was also rejected as being unworkable in practice. Lord Dyson added at [51]:

“ What matters for present purposes is that nothing that was said .. in the HJ (Iran) case supports the idea that it is relevant to determine how important the right is to the individual. There is no scope for the application of the core/marginal distinction …. ”

The Supreme Court was unanimous in its decision. In the only concurring judgment, Lord Kerr formulated his rejection of the core/margins distinction in these terms, at [74]:

“ The level of entitlement to protection cannot be calibrated according to the inclination of the individual who claims it. The essential character of the right is inherent to the nature of the right, not to the value that an individual places on it …….

That is why the emphasis must be not on the disposition of the individual liable to be the victim of persecution but on the mind of the persecutor. ”

Our analysis

42. The main issue in this appeal has arisen in cases beyond these shores. In Szatv v Minister for Immigration and Citizenship [2007] 233 CLR 18, the Appellant qualified as a civil engineer. Some years later, he began working as a journalist in a particular region of Ukraine, where he suffered harassment and physical maltreatment on account of his political views. He fled to Australia, where he sought asylum. The Refugee Review Tribunal rejected his claim on the ground that he could return to a different part of Ukraine where he would not be known and could work in the construction industry there. His appeal was allowed on the basis that the fallacy in the Tribunal’s reasoning was that in order to avoid persecution the Appellant would have to forfeit the very right to express his political opinions without fear of persecution which the Convention is designed to protect. The same approach was applied by the High Court in Appellant S395/2002 v Minister for Immigration (216) CLR 473, at 489 especially. Notably, these decisions were cited with approval by the Supreme Court in HJ (Iran) .

43. In the specific context of the Qualification Directive, there are two relevant decisions of the CJEU. One concerns religious belief and practice, while the other relates to membership of a particular social group, namely homosexual males. In the first, Joined cases C-71/11 and C-99/11 Y and Z , the main question examined by the CJEU was whether Article 2(c) of the Qualification Directive is to be interpreted as meaning that an applicant’s fear of being persecuted is well founded in circumstances where he could avoid exposure to persecution in his country of origin by abstaining from certain religious practices. The Court ruled in favour of the applicant, concluding at [79]:

“ It follows that where it is established that, upon his return to his country of origin, the person concerned will follow a religious practice which will expose him to a real risk of persecution, he should be granted refugee status, in accordance with Article 13 of the Directive. The fact that he could avoid that risk by abstaining from certain religious practices is, in principle, irrelevant. ”

Pausing at this juncture, this decision seems to us entirely consonant with those in Ahmed and HJ (Iran) .

44. Some of the steps in the Court’s reasoning and analysis in Y and Z repay careful analysis . First, the Court characterised freedom of religion a basic human right. Second, having regard to the wording of Article 9(1) of the Directive, it emphasised the threshold of “ severe violation ” of the right or freedom engaged. This was followed by a distinction between limitations on the exercise of the basic right (on the one hand) and the violation thereof (on the other), by reference to Article 10(1) and Article 52(1) of the Charter of Fundamental Rights. Continuing, the Court observed, at [62]:

“ For the purpose of determining, specifically, which acts may be regarded as constituting persecution within the meaning of Article 9(1)(a) of the Directive, it is unnecessary to distinguish acts that interfere with the ‘core areas’ (‘forum internum’) of the basic right to freedom of religion, which do not include religious activities in public (‘forum externum’), from acts which do not affect those purported ‘core areas’ …..

[63] Such a distinction is incompatible with the broad definition of ‘religion’ given by Article 10(1)(b) of the Directive …… ”

In [65] the Court formulated the test of “ the nature of the repression inflicted on the individual and its consequences ”. In [66], it rephrased this, albeit to like effect, as “ the severity of the measures and sanctions adopted or liable to be adopted against the person concerned ”.

The Court’s consideration of the exercise of assessing risk to the individual is striking, at [70]:

“ In assessing such a risk, the competent authorities must take account of a number of factors, both objective and subjective. The subjective circumstance that the observance of a certain religious practice in public, which is subject to the restrictions at issue, is of particular importance to the person concerned in order to preserve his religious identity is a relevant factor to be taken into account in determining the level of risk to which the applicant will be exposed in his country of origin on account of his religion, even if the observance of such a religious practice does not constitute a core element of faith for the religious community concerned. ”

In [72], the Court reiterated the necessary of evaluating “ the personal circumstances of the person concerned ”. Finally, as noted above, the Court rejected the “abstention” argument, namely the contention that a person does not have a well founded fear of persecution where he can abstain from religious practices.

45. To like effect is the Court’s conclusion in Joined cases C-199-201/12 X, Y and Z , at [75]:

“ It follows that the person must be granted refugee status, in accordance with Article 13 of the Directive, where it is established that on return to his country of origin his homosexuality would expose him to a genuine risk of persecution within the meaning of Article 9(1) thereof. The fact that he could avoid that risk by exercising greater restraint than a heterosexual in expressing his sexual orientation is not to be taken into account in that respect. ”

In short, the possibility of conduct entailing the avoidance of modification of certain types of behaviour related directly to the right engaged is irrelevant. Thus this possibility must be disregarded.

46. In our judgement, the only issue on which there is a possible element of dissonance between the decisions of the Supreme Court and those of the CJEU is whether it is permissible to take into account the avoidance or modification of conduct on the part of the person concerned which is voluntary . This emerges particularly from the analytical exercise contained in [82] of the opinion of Lord Rodger in HJ (Iran) . It may be said that the approach espoused by Lord Hope in [35] is in substance the same. Lord Walker, at [98], concurred with [82] of Lord Rodger’s judgment. So too did Lord Collins, at [100] and Lord Dyson, at [132] while, simultaneously, observing in [123] that, in reality, there will be “no real choice”.

47. Pausing at this juncture, we consider that the decisions of the United Kingdom Supreme Court, the High Court of Australia and the Court of Justice of the European Union are in alignment with each other. They are united by their common espousal of the dominant principle that the stature of the right and the unbridled freedom to exercise it (subject only to limitations which do not arise in this appeal) rise above and eclipse other considerations.

48. To the extent that there is any disharmony between the approaches of the Supreme Court and the CJEU, we are, by virtue of the principle of supremacy of EU Law, obliged to follow the latter. However, for the reasons which we will explain, this issue is moot in the present case as we are satisfied that the Appellant succeeds on both approaches.

49. At this juncture, we remind ourselves of the relatively narrow distance which separates the parties on this issue. It is identifiable in Ms Rhee’s submission that HJ (Iran) is authority for the proposition that the compulsory modification of a person’s conduct in order to avoid being persecuted will not amount to persecution unless tantamount to forfeiture of a fundamental human right. This, it is argued, is the narrow ratio decidendi of HJ (Iran) . Thus, it is submitted, it is not sufficient that the ground or status in question simply falls within the scope of the protection afforded by the Refugee Convention. It is further submitted that, properly analysed, the right espoused by the Appellant is a right to practice one’s chosen profession, which is not protected by the Convention.

50. We acknowledge at this point the Secretary of State’s argument that the Refugee Convention does not protect a right to pursue a profession of one’s choice. This is a case of risk arising out of imputed political opinion. We consider that the fact that the imputation of the political opinion arises in the context of the Appellant’s chosen profession is immaterial and incidental. Thus we consider this argument to have no merit.

51. The second main element of the Secretary of State’s case is that the modification of behaviour under scrutiny will not involve the forfeiture of a fundamental human right. We have analysed in some detail the passages in HJ (Iran) invoked in support of this contention. We would add the following. As our assessment above indicates, the espousal or expression of political opinion, or the imputation thereof, engages freedom of expression, which is a fundamental right. Insofar as Ms Rhee’s submission involves the suggestion that there are different degrees in the exercise of the right to espouse and express political opinions, her argument invites a quantitative assessment which, in our opinion, is not merely impracticable but is not harmonious with the nature of the right in question. We consider that interference with this particular right is not to be measured by reference to the extent to which the exercise of one right is adversely affected by the conduct, threatened or actual, of the persecutor. This approach, in our view, neglects the intrinsic nature of the right, which permits and protects the unconstrained expression of a political opinion at any time, at the choice of the individual, as frequently or infrequently as may be desired , subject only to limitations which do not arise in this appeal. This is the quintessence of the underlying right, namely freedom of expression. Moreover, to accede to this argument would be tantamount to reinstating the discredited concept of marginal versus core. Finally, it suffers from the further infirmity that its operation would be utterly impracticable in cases of imputed political opinion.

52. Finally, having subjected the judgment of Lord Dyson in HJ (Iran) to appropriate scrutiny, we are unpersuaded that [110] – [118] thereof support the Secretary of State’s case, for the reasons we have given.

53. We consider that the Secretary of State’s “outright forfeiture” argument must be rejected as the further basis of its impermissible shift of focus from the persecutors to the victim.

Omnibus Conclusion

54. We conclude:

(i) The enforced return of the Appellant to Mogadishu, Somalia, will expose him to a real risk of persecution for the Refugee Convention reason of his political opinion, imputed, and/or a breach of his rights under Articles 2 and 3 ECHR.

(ii) The Appellant is not to be denied refugee status on the ground that it would be open to him to seek to engage in employment other than in the journalistic or media sector.

(iii) Giving effect to these conclusions, we remake the decision by allowing the Appellant’s appeal.

THE HON. MR JUSTICE MCCLOSKEY

PRESIDENT OF THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Date: 05 June 2015