The Secretary of State for the Home Department v AMA

The appellant (‘the SSHD’) has appealed against a decision of First-tier Tribunal (‘FTT’) Judge Ennals dated 20 November 2017 , in which h e allowed AMA’s appeal against a decision dated 1 3 June 2017 to make a deportation order .

AMA is a citizen of Somalia. He entered the UK in 2006, when he was 14, with his father and siblings, having been granted a settlement visa to join his mother (‘M’), who had been granted asylum in the UK on 17 May 2005. AMA was recognised as a refugee when he entered the UK , as evident from the SSHD’s more recent decis ion to cease his refugee status . In his decision dated 13 June 2017, the SSHD expressly acknowledged that AMA derived his refugee status from his mother.

M’s 2005 asylum statement provided the following information : she was born in Qoryoley, Somalia and this was her last permanent address in Somalia before she left in February 2005; she and her family members are from the Ashraf minority clan; M, her immediate family membe rs and her extended family members were subject to sustained persecution by the Hawiye majority clan during the civil war from 1996; this led to the killings of some family members and the capture of the remaining family members who were used as forced labour and ill-treated at a camp in Qoryol ey; female relatives were raped including M’s two sisters and many relatives were killed either trying to escape or in attempting to defend themselves including M’s two brothers , M’s mother, M’s nephew and M’s uncle; M’s husband and the older children escaped from the camp in 2004 during a period of Hawiye in - fighting; M escaped from the camp in March 2005 with the help of her uncle in Saudi Arabia who arranged for an agent to use bribery to facilitate this; M was able to leave the camp but without the younger children and arrived in the UK on 22 March 2015, after travelling via Ethiopia.

M was interviewed regarding her asylum claim on 28 April 2005 and recognised as a refugee in a 'grant of asylum' letter dated 17 May 2005. Following this , M’s husband and children, including AMA , were granted visas to join M on 3 March 2006, and arrived on 10 April 2006.

Between 2009 and 2015, AMA was convicted on five occasions but was not sentenced to a period of imprisonment until 7 March 2012, when he was convicted of production of a controlled drug of Class B and commission of an offence during a suspended sentence order and sentenced to nine months imprisonment.

O n 1 April 2016 AMA was notifi ed of a decision to deport him under section 5(1) of the Immigration Act 1971 . There then followed a period in which representations were sought regarding t he cessation of AMA’s refugee status. On 18 January 2017 the UNHCR submitted detailed representations on the proposed cessation of AMA’s refugee status. The UNHCR submitted that there were insufficient fundamental changes in Somalia to warrant the application of a r ticle 1C(5) of the 1951 Convention relating to the Status of Refugees (‘the Refugee Convention’) given the individual circumstances of AMA’s case. The UNHCR drew specific attention to: the SSHD’s failure to address the safety of the route of return from Mogadishu to Qory oley, AMA’s home area; the internal relocation alternative to Mogadishu should not be a relevant consideration when making a dec ision on the application of a rticle 1C(5); country background reports post-dating the country guidance in MOJ and others (Return to Mogadishu) Somalia CG v SSHD [20 14] UKUT 00442 (IAC) demonstrating that clan tensions continue and members of minority clans rema in at a particular disadvantage, such that any improvements in Somalia cannot be considered fundamental and durable.

On 26 April 2017 AMA was convicted of using threaten ing words or behaviour, in relation to which he was fined and made the subject of a restraining order.

On 13 June 2017 a decision was made to cease AMA’s refugee status and refuse his human rights claim . The SSHD expressly considered the UNHCR submissions and accepted “ that travel between Mogadishu and Qory oley may expose [AMA] to risk ” but that he could safely reside in Mogadishu. The SSHD did not address the submission made by the UNHCR that this would in effect require AMA to make use of the internal relocation alternative and was inappropriate for the purposes of the cessation of refugee status .

AMA ’ s appeal to the FTT was successful. The FTT concluded that the family history of sustained and egregious persecution over many years was such that a rticle 1C(6) of the Refugee Convention and the SSHD’s policy pursuant to this as contained in the Asylum Policy Instruction on Revocation of Refugee Status dated 19 January 2016 (‘the Revocation API’), applied in AMA’s favour.

At [15] to [16] of its decision t he FTT rehearsed a summary of the persecution endured by M and her family members from 199 6 to 2015 and noted that this account had never been disputed by the SSHD. M’s asylum claim was granted without the necessity of an appeal and her statement must have been broadly accepted to be true. The FTT also noted an absence of any evidence from the SSHD to suggest otherwise. On that basis at [17] , the FTT found it “ hard to imagine a scenario that better fits the provision in Art 1(C)(6) ”. The FTT adopted the language of the Revocation API in reaching the following conclusion:

The FTT therefore found at [18] “ that the provisions of Article 1C and para 339A of the Immigration Rules did not apply to [AMA] and so his protection cannot be revoked ”.

Given this finding, the FTT made it clear at [20 ] that he did not need to address the submission, based upon MOJ , that AMA could return to Mogadishu , but in any event found “ for what it is worth and without further argument ” that AMA could not safely return to Mogadishu in light of the guidance in MOJ .

At the hearing before me, Mr Tan confirmed that t he SSHD wished to rely upo n the g rounds of appeal dated 20 November 2017 and did not place reliance upon the later grounds dated 5 January 2018. The 2017 grounds of appeal are t hree- fold :

As a dependent on his mother’s refugee claim AMA has not demonstrated that he endured the traumatic experiences that she did in Somalia .

Article 1C(6) of the Refugee Convention cannot overr ide paragraph 339A of the Immigration Rules .

The FTT failed to properly apply MOJ .

Permission was initially refused by the FTT , but granted by the UT in a decision dated 23 March 2018. UT Judge Macleman observed that “ if the judge was right about the facts, it would be hard to argue that the judge went wrong at [17] in finding that the scenario fitted Article 1C(6 ) of the Refugee Convention and the SSHD’ s guidance ” . Judge Macleman considered that since a rticle 1C( 6) is not replicated within 339A of the Immigration Rules, their interaction was not dealt with by the FTT and “ qualifies for debate and answer ”.

In a Rule 24 notice dated 18 May 2018, it was submitted on AMA’s behalf that the FTT did not err in law in applying a rticle 1C (5) of the Refugee Convention , when that is mirrored in a rticle 11 of the Qualification Directive and the SSHD’s own policy. Pausing there, although the FTT decision and the SSH D’s grounds of appeal refer to a rticle 1C(6), as will be seen from the discussion below, this was a mistake and both must have me ant to refer to a rticle 1C(5) , because article 1C(6) applies to those who are stateless. No one has ever suggested this regarding AMA.

AMA’s solicitors also provided the UT with a copy of MS (Art 1C(5)- Mogadishu) Somalia [2018] UKUT 00196 (IAC) (promulgated on 22 March 2018) and placed reliance on this in a covering letter dated July 2018.

At the beginning of the hearing before me , Mr Tan realistically acknowledged that the first ground of appeal in which AMA is described as a dependent on his mother’s refugee claim and a person who has not necessarily experienced very similar traumatic experiences to her , is difficult to follow. AMA may have gained his refugee status in line with his mother and pursuant to family reunification but he was nonetheless recognised as a refugee in the UK, hence the decision to cease his refugee status. That approach is consistent with 3.7.1 of the R evocation API , which states that the previous policy on family reunion was to grant refugee status and leave in line under the family reunion provisions as a matter of course. Mr Tan also acknowledged that there was no dispute before the FTT that AMA spent much of his childhood with M and other family members, living and working, in effective slavery and in atrocious conditions. The reasons for the principal applicant, M being granted asylum, were therefore very similar to the reasons why AMA was granted refugee status in line with h er . In light of this, Mr Tan focused his attention on the second ground of appeal and invit ed me to find that the FTT erred in law in failing to apply 339A of the Immigration Rules , albeit he appreciate d that 339A did not sit comfortably with the SSHD’s own policy, as set out in the R evocation API .

Mr Tan acknowledged that the third ground of appeal placed reliance on the FTT’s failure to properly apply MOJ but this only became material if the second ground was not made out.

Finally, I invited Mr Tan to make submissions on the applicability of M S , as this was effectively raised by AMA as an alternative basis for the FTT reaching the decision it did, albeit not one articulated by the FTT . Mr Ta m invited me to find that M S is inconsistent with SSHD v MA (Somalia) [2018] EWCA Civ 994 (handed down on 2 May 2018 and unavailable to the Tribunal in M S ) . Mr Tam however acknowledged that unlike the position in M A , the instan t case i s definitely an ‘ internal relocation case ’ . In other words, t he SSHD accepted that AMA could not return to his home area in Q oroyley and he was being expect ed to relocate to Mogadis h u.

I then heard from Mr Hussain who invited me to dismiss the SSHD’s appeal for three reasons . First, the FTT was entitled to allow the appeal on Refuge Convention grounds , having found that a rticle 1C(5 ) applied, and such an approach was consistent with policy and EU law . Second ly and in any event following MS , the SSHD was not entitled to cease AMA’s refugee status pursuant to a rticle 1C(5) solely on the basis of a change in circumstances in one part of the country of proposed return. Third ly and in the alternative , as the FTT concluded, the proper application of MOJ was such that AMA is at prospective risk.

I reserved my decision which I now provide with reasons.

The Refugee Convention as supplemented by the Protocol relating to the Status of Refugees of 31 January 1967 (‘the Protocol’) refers to ‘statutory’ refugees or pre-1951 refugees at article 1A(1) and then provides the definition of the ‘modern’ refugee at article 1A (2)

Article 1C then states as follows:

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

Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

Sub-paragraphs (5) and (6) of a rticle 1C draw the reader’s attention to a “refugee falling under” section A(1) or a rticle A(1) . The second sub- par agraph s of a rticles 1C(5) and (6) (which I shall refer to as the ‘ c ompelling reason s proviso’ ) do not therefore cover all refugees and is limited in its applica tion to refugees falling under a rticle A(1) , otherwise known as ‘ statutory refugees ’ .

P aragraph 136 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979) states with reference to a rticle 1C(5):

The reasoning in this pass age reflects a long- standing concern on the part of the UNHCR that the cessation clauses in the Refugee Convention were being taken too literally. A similar concern predicated the appellant’s submissions in the House of Lords , in R v Special Adjudicator ex parte Hoxha [2005] 1 WLR 1063, [2015] UKHL 19 . The House of Lords considered the cessation clauses, and in particular the comp elling reasons proviso albeit not in a cessation case. Rather, the case concerned asylum applicants who no longer had a well-founded fear of persecution prior to the determination of their asylum claims, which were in principle well-founded at the time that they fled their country of origin. Nonetheless, t he claim t hat the compelling reasons provis o applied to non-statutory or ‘ modern ’ refugees was rejected .

Lord Hope drew attent ion to the drafting history of a rticl e 1C(5) and concluded that the state parties were not willing either at t he time the Refugee Convention was entered into or when it was amended pursuant to the Protocol , to extend the benefit of the compelling reasons proviso to non-statutory refugees – see [16] to [20] of his judgment. The Protocol recognised that new situations had arisen since the Refugee Convention was adopted and that further provisions were needed as persons who had become refugees since 1 January 1951 might not fall within its scope , and it was desirable that equal status should be enjoyed by all refugees . Although t he Protocol effectively amended aspects of the Refugee Convention , such that these two instruments provide the cornerstone of the international legal regime for the protection of refugees , the preamble to a rticle 1C(5) was left untouched because , “ although they were aware that events had moved on since 1951, the state parties were still not willing to agree to a relaxation of the limitation that had been expressly written into the proviso ” . Having traced the relevant drafting history , Lord Hope conclud ed that, while the framers of the Refugee Convention had the opportunity to extend the be nefit of the compelling reason s proviso to all refugees, a deliberate decision was taken to confine its application to the statutory refugees who had been identified in a rticle 1A(1). A distinction was thus created betwee n them and those identified in a rticle 1A(2).

At [21] Lord Hope observed that a further opportunity to address the issue arose when the European Commission was framing its proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees. The proposal, which was in the same terms as Article 11 of Council Directive 2004/83/EC (‘t he QD ’) , repeated the language of a rticles 1C(5) and (6) but omitted the provisos. Article 11 of the QD therefore states:

The QD has been superseded for EU members states other than the UK, Ireland and Denmark by the recast Qualification Directive 2011/95/E U (‘the recast QD’). Article 11 in the recast QD provides an additional sub-paragraph (3) as follows:

The EU has therefore explicitly amended its law in the form of the recast QD to extend the be ne fit of the compelling reasons proviso to modern refugees. That does not however assist in the proper interpretation of the Refugee Convention or the QD applicable to the UK. It is clear from the text of the se two instruments that there is no legal duty to apply the compelling reasons proviso exception to refugees other than the very limited category of statutory refugees. This analysis was accepted by the House of Lords in Hoxha but has also been accepted by respected academic commentators in the field – see for example, The Law of Refugee Status , Second Edition by James Hathaway and Michelle Foster at 6.1.4.

Paragraph 339A of the Immigration Rules reflects the wording of the Refugee Convention and the QD and states that a person’s grant of asylum will be revoked or not renewed if the Secretary of State is satisfied that :

Paragraph 339A goes on to state that:

It follows that I reject Mr Hussain’s submission that the FTT was entitled to app ly the compelling reasons proviso contained in a rticle 1 C(5) (mistakenly referred to as a rticle 1C(6)), to AMA. Such an approach is inconsistent with the terms of the Refugee Convention itself, the applicable QD and paragraph 339A. T he FTT therefore erred in law in allowing the appeal on the basis that the SSHD could not rely upon a rticle 1(C) and paragraph 339A, by reason of the application of the proviso.

As Lord Hope noted in Hoxha at [22], t he Commission's commentary at the time of the drafting of the QD, contains the following :

That approach is consistent with the SSHD’s current position that the proviso vis à vis the Refugee Convention does not apply to a non-statutory refugee but is interpreted as reflecting a general humanitarian principle. At 4.5 of the Revocation API under the heading ‘Compelling reasons arising out of previous persecution’ the following is stated:

The FTT was entitled to note that the SSHD’s policy was relevant , in so far as the “ truly atrocious ” past persecution suffered by AMA and his family members , wa s undisputed and might be relevant if the need to consider internal relocation arose . However, that finding in itself could not form a lawful basis for finding that AMA’s removal from the UK would breach it s obligations under the Refugee Convention – see the limited appeal rights at s ection 82 of the Nationality Immigration and Asylum Act 2002 , as amended. Any challenge to the failure to apply a policy can no longer form the basis of a ground of appeal to the FTT – see ES (s82 NIA 2002; negative NRM) Albania [2018] UKUT 335 (IAC) at [27] and [28]. T he only issue before the F TT in this case was whether AMA continued to qualify for protection under the Refugee Convention. It is important to read t he headnote in SF and others (Guidance – post-2014 Act) Albania [2017] UKUT 120 (IAC) 10 to the effect that even in the absence of a ‘not in accordance with the law’ ground of appeal, the Tribunal ought to take the SSHD’s guidance into account if it points clearly to a particular outcome, in its proper context . SF involved an assessment of the reasonableness of expecting a child to leave the UK, and the SSHD’s own gu idance was relevant to assisting the Tribunal to make judgments, consistent with the approach that would be taken by the SSHD – see [10] to [12].

In any event, t he FTT did not allow the appeal because of a breach of policy but used the wording of the p olicy to support the view that a rticle 1(C)(5) applied. For the reasons provided above the compelling circumstances proviso could not be lawfully applied so as to underpin a decision to allow the appeal on asylum grounds.

In MS , U T Judge Kopieczek concluded that the SSHD is not entitled to cease a person’s refugee status pursuant to a rticle 1C(5) solely on the basis of a change of circumstances in one part of the country of proposed return. The nub of hi s reasoni ng is to be found at [51] to [57 ].

The relevant UN HCR Cessation Guidelines (10 February 2003) state at [6] that when interpreting the cessation clauses, it is important to bear in mind the broad durable solutions context of refugee protection informing the object and purpose o f these clauses. T he changes need to be of a fundamental natur e and durable. The UN H CR Cessation Guidelines also emphasise at [15] that a crucial question is whether the refug ee can effectively re-avail himself or herself of the protection of his or her own coun try, and a t [17] say this :

Mr Tan submitted that the conclusion at [57] in MS that [17] of the UNHCR Guidelines is correct, was reached without the benefit of the Court of Appeal’s judgment in MA , which applied the CJEU decision in Joined Cases Abdulla and others v Bundesrepublik Deutschland , 2 March 2010 ( C-175/08 - C179/08 ) . It should be noted that Judge Kopieczek made it clear that he was only referred to two authorities. These did not include Abdulla - see [45] of MS . MA was handed down after MS was promulgated. In addition, MA was not an ‘internal relocation case ’ and neither was Abdulla . MA was a Somali national whose home area was in Mogadishu, where the SSHD proposed to remove him. Abdulla involved Iraqi nationals who were granted refugee status on the basis of persecution suffered at the hands of Saddam Hussain. The German authorities wished to revoke their refugee status relying upon the QD on the basis that although the conditions in Iraq remained generally unsettled, there had been the requisite change of circumstances such that there could no longer be said to be a well-founded fear of persecution. The judgment s in MA and Abdulla therefore say little about internal r elocation in the context of cessation .

In MA , judgment was given by Arden LJ , with whom Peter Jackson LJ agreed. E xtensive reference s were made to the country background evidence as set out in MOJ at [9] and the reasons for the CJEU’s conclusion in Abdulla , that cessation of refugee status under the QD involves an individualised and not a generalised evaluation of the changed conditions in the country of origin at [47] to [60] . Arden LJ accepted that lacking a well-founded fear of specific persecution, refugee status ceases even if the general security situation in the country of nationality is not stable and the general living conditions do not ensure a minimum standard of living. In short, Arden LJ found that it was necessary to simply determine whether any fear for a Refugee Convention reason ceased to exist such that it could be described as “ significant and non-tempor ar y” within the terms of a rticle 11(2) of the QD . In reaching that conclusion , Arden LJ accepted at [47] that it would be inconsistent with the purposes of refugee status if protection could be ceased “ too easily ” but equally “ there is no necessary reason why refugee status should be continued beyond the time ” when the refugee is subject to persecution. Arden LJ rejected the submission that the grounds for cessation could go beyond the grounds for recognition of refugee status so as to include “ humanitarian standards ” or the protection of “ human rights in general ”, and observed that “ there should be the requirement for symmetry between the grant and the cessation of refugee status ” – see [47], [51], [56] of the judgment .

I appreciate that at first glance this mig ht appear inconsistent with Judge K opieczek ’s observation in MS that there is a “ very significant and practical difference between the grant and the cessation of refugee status ”. However, upon closer scrutiny, any difference in approach between MA and MS is more apparent than real . At no stage in his reasoning did Judge K opieczek suggest that the cessation enquiry is a wider or more generalised one that includes the consideration of humanitarian standards unrelated to the requirements within the Refugee Convention. Indeed, Judge K opieczek appears to agree with the need for symmetry between the grant and cessation of refugee status , when he deprecates any differences in approach to the consideration of internal relocation at [55]. Similarly, Arden LJ’s approval of symmetry between the grant and the cessation of refugee status, does not obviate the obvious differences that exist. First, the burden of proof is on the applicant to establish that he is entitled to refugee status , but the burden of proof is upon th e state to demonstrate that refugee status should cease. Secondly, there is a strict and restrictive approach to cessation for reasons explained by Lord Brown in Hoxha at [65-66] and the UNHCR Cessation Guidelines. That is reflected in the high and exacting test that must be met. Contrast this with the benefit of the doubt given to asylum claimants. Thirdly, whilst the same lower standard of proof must be applied when deciding whether the person meets the requirements of the Refugee Convention at both stages (see [88] of Abdulla ), f or there to be cessation there is the discrete and additional requirement that any change in circumstances must be of a “significant and non-temporary” nature, such that the factors which formed the basis of the refugee’s fear of persecution may be regarded as having been “ permanently eradicated ” ( see [73] of Abdulla ) .

Notwithstan ding the differences set out above, I accept there remains a symmetry between the grant and the cessation of refugee status. As the CJEU observed in Abdulla at [89]:

In addition, t he individual approach to determining whether a person is entitled to refugee status remains when considering whether to revoke that status. A s the CJEU in Abdulla indicates at [76] , for the purposes of assessing a change of circumstances, regard must be had to “ refugee’s individual situation ” . In MA , Arden LJ approved of the “ individualised approach ” in this respect, at [49].

A ll the ingredients in article 1A(2) of the Refugee Convention must therefore be met at both stages of the examination: when determining status and whether to cease that status. This commonly require s the following: (i) a well-founded fear of persecution; (ii) for reasons relating to a Convention Reason; (iii) making the person unable or unwilling to avail himself of the protection of th e country . The final ingredient is based upon the principle of surrogacy and necessarily includes an enquiry as to whether the person can be expected to seek protection in another part of his country of origin. The widely accepted test is whether the person can be reasonably expected to internally relocate – see Januzi v SSHD [2006] UKHL 5 at [7-8] and [48-49] .

The wording of a rticle 1C(5) also supports this symmetrical approach. It clearly refers not just to “ the circumstances in connection with which he has been recognised as a refugee ” having “ ceased to exist ” but also to the person not be ing able to avail himself “ of the protection of the country of his nationality ”. The principle of surrogacy is therefore found in both article 1C(5) and article 1A(2) of the Refugee Convention . There is therefore a prima facie argument that if a person is able to avail himself of protection in one part of the country then (unless that protection lacks the posit ive qualit ies required of it, including being effective / durable / fundamental / significant / non-temporary) , they do not meet the ref u g ee definition , and if they are being considered for cessation they are no longer a refugee. I n other words, i f effective protection is available then a person does not meet the definition of a refugee.

However, the reality of the situation is that the expectation that a pers on can avail himself of the protection of another part of his country of nationality, i.e. through internal relocation, only arises for consideration where it is accepted that there is a well-founded fear of persecution for a Convention Reason in the home area of that country. It is difficult to envisage how and in what circumstances a well-founded fear of persecution can be said to be “no n-temporary”, “significant” or “permanently eradicated” in a country for a particular person, wherein it is accepted that it continues in the person’s home area of that same country and / or the person cannot safely move around the country. The necessary requirement for the changes to be fundamental and durable is most likely to be absent . It follows that the availability of internal relocation is generally unlikely to be a material consideration when applying a rticle 1C(5) of the Refugee Convention or a rticle 11 of the QD.

Although I note the difference in approa ch 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 t o 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 C onvention, 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.

C hanges in the refugee’s country of origin affe cting 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. W hilst 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 circumstan ces be fundamental and durable or “sig nificant and non-temporary” is unlikely to be met.

Mr Tan accepted that this is an ‘internal relocation case’ i.e. the SSHD accepted that AMA could not safely return to his home area in Qoryoley, but that he could internally relocate to Mogadishu, a city he has never lived in. Mr Tan was unable to explain how, in the context of a country such as Somalia, with a lengthy and fluid history of complex and egregious persecution by various actors in the face of an either non-existent or very weak state apparatus, there can be the requisite “significant and non-temporary” change in circumstances, if , as here, a person is accepted to have a well-founded fear of pers ecution in one part of the country . Mr Tan was unable to come close to explaining how the circumstances that led to AMA being granted refugee status can be said to be permanently eradicated when he is unable to travel outside of Mogadishu to his home area (the distance between Mogadishu and Qoryoley being a mere 120km) .

It follows that although the FTT erred in law in allowing the appeal by appl ying the compelling reason s proviso to AMA, this is not a material error of law . On no reasonable view of the evidence would a Tribunal be able to conclude that the change in circumstances meets the high test for cessation when the SSHD has accepted that AMA remains at risk of persecution in and cannot travel to his home area.

The FTT did not consider that it needed to address safety in Mogadishu pursuant to MOJ , given its primary conclusion that the compelling reasons proviso applied such that the SSHD could not lawfully cease AMA’s refugee status. However, the FTT briefly indicated that AMA would not be safe in Mogadishu is any event. Although all the relevant considerations pertaining to AMA were not considered, t h e FTT’s conclusion is supported by the following extract from MOJ at [425]:

Significantly, any assessment of internal relocation would have to include not just the safety but also the reasonableness of relocation i.e. whether it would be unduly harsh for the individual to relocate. The Upper Tribunal recently reviewed the authorities in support of the holistic approach to internal relocation at [79] to [90] of AAH (Iraqi Kurds - internal relocation) Iraq CG UKUT 212 (IAC) . That holistic approach includes the extent and impact of past persecution – see SSHD v AH Sudan [ 2007] UKHL 49 at [5] and [20] . This in turn includes the extent to which the compelling reasons proviso applies to the refugee, given the SSHD’s acceptance that it has a role to play in the Revocation API.

As set out above, Mr Tan did not place reliance on the first ground of appeal. There is therefore an un - appealed factual finding that AMA, and his close family members were the victims of atrocious and sustained persecution over the course of many years. The Revocation API recognises the role that the compelling reasons proviso might play as a matter of policy when making a cessation decision. When this is combined with the country guidance in MOJ , as summarised at [406] and [407], to the effect that AMA has no former or current links to Mogadishu and as a minority clan member will be unable to seek assistance from majority clan members or minority clan members, it is difficult to see how a conclusion could be reached that internal relocation to Mogadishu , for AMA , could be said to be anything other than unduly harsh , even on the assumption that AMA would be able to receive remittances from abroad .

If I am wrong in my approach to the second ground of appeal , I would nonetheless dismiss the SSHD’s appeal for the reasons I have set out above in relation to the third issue.