The Secretary of State for the Home Department v Mosira [2017] EWCA Civ 407

[2017] EWCA Civ 407Case No C5/2015/3803
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
DA007182014
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08 June 2017
Before
LADY JUSTICE BLACKLORD JUSTICE SALESLORD JUSTICE HENDERSON
Between
The Secretary of State for the Home DepartmentAppellantWilfred MosiraRespondent
Zane Malik (instructed by The Government Legal Department) for AppellantRichard Drabble QC and Althea Radford (instructed by Turpin & Miller LLP) for RespondentHearing Hearing date: 18 May 2017
Judgment Approved
[1]This is an appeal by the Secretary of State in an immigration case. The case concerns Mr Mosira, a citizen of Zimbabwe, who came to this country at the age of 17 in 2004 pursuant to the Secretary of State’s family reunion policy promulgated in 2003 (“the 2003 policy”) to join his mother, who had previously been granted refugee status to stay in the United Kingdom. Under the 2003 policy, Mr Mosira was himself granted refugee status by the Secretary of State.[2]In 2012, Mr Mosira was convicted on two counts of sexual activity with a girl less than 16 years old, who had been aged 13 at the relevant time. Mr Mosira had been aged 25. He was sentenced to concurrent terms of imprisonment for 3 years. There is no dispute that this constituted serious criminal offending. There is also no dispute that Mr Mosira qualifies as a “foreign criminal” for the purposes of section 32 of the UK Borders Act 2007.[3]The Secretary of State gave notice that she intended to make an order to deport Mr Mosira back to Zimbabwe when he was released. She purported to give notice of cessation of his refugee status and then finalised her decision to make a deportation order.[4]Mr Mosira appealed to the First-tier Tribunal (“FTT”). His appeal was dismissed in circumstances discussed below. On appeal, by a decision of September 2014 the Upper Tribunal (UT Judge Clive Lane) allowed his appeal and set aside the FTT’s decision, directing instead that there should be a fresh consideration by the Upper Tribunal itself of his appeal against the Secretary of State’s decision.[5]In a decision promulgated on 14 August 2015, the Upper Tribunal (Knowles J and UT Judge McWilliam) re-made the decision on Mr Mosira’s appeal. It allowed the appeal. It held that it had not been open to the Secretary of State to withdraw Mr Mosira’s refugee status in the way she did and, in view of the low risk to the public now presented by Mr Mosira, it held that there was no sufficient public interest in deportation to justify his removal for the purposes of the 1951 Refugee Convention. This is the decision against which the Secretary of State now appeals, with permission granted by Rafferty LJ.

Legal framework

[6]The United Kingdom is a party to the Refugee Convention of 1951, which makes provision for the protection of refugees present within the territory of a host state. Article 1A(2) states that for the purposes of the Refugee Convention the term “refugee” shall apply to any person who:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”
[7]Article 1C provides in relevant part as follows:
“This Convention shall cease to apply to any person falling under the terms of section A if: … (5) He can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality …”
[8]Article 2 of the European Convention on Human Rights (“ECHR”) protects the right to life. Article 3 of the ECHR sets out a right not to be subjected to torture or inhumane treatment. They are given effect in domestic law by the Human Rights Act 1998 and other legislation.[9]Section 32 of the UK Borders Act 2007 provides for automatic deportation of foreign criminals, subject to certain exceptions in section 33. Those include where removal of the foreign criminal in pursuance of the deportation order would breach a person’s Convention rights as set out in the ECHR and the Human Rights Act or the United Kingdom’s obligations under the Refugee Convention: section 33(2).[10]We were not taken to all the provisions of the Immigration Rules which might be thought to bear on the issue of the status of Mr Mosira or provided with a full analysis of his position under the Rules or domestic law more generally. The Immigration Rules make provision for the grant of asylum or what is termed “refugee status” in para. 334. As para. 334 currently stands, it seems that it does not apply to a person given leave to enter on the basis of family reunion rules (certainly, we were not shown that it does). We were not shown the version of the Rules in place when Mr Mosira was originally granted refugee status pursuant to the 2003 policy. I assume it was in the same form. On a proper analysis, therefore, since Mr Mosira was only granted refugee status under the 2003 policy for family reunion, it seems that he was not granted such status under para. 334 of the Immigration Rules. This was not a point appreciated or articulated by the representatives for the Secretary of State in presenting her case at any stage.[11]Paragraph 338A of the Immigration Rules in their current form states that “A person’s grant of refugee status under paragraph 334 shall be revoked or not renewed if any of paragraphs 339A to 339AB apply”. Paragraph 339A of the Immigration Rules in their current form makes provision for when the Refugee Convention shall be taken to cease to apply. It reflects Article 1C of that Convention. It provides in relevant part that it applies:
“when the Secretary of State is satisfied that … (v) they can no longer, because the circumstances in connection with which they have been recognised as a refugee have ceased to exist, continue to refuse to avail themselves of the protection of the country of nationality; … In considering (v) …, the Secretary of State shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded.”
[12]The representatives of the Secretary of State at each stage have assumed that this provision applies in relation to Mr Mosira. However, it seems doubtful that it does, because he was not granted refugee status under para. 334 of the Rules.[13]The Refugee Convention does not impose an obligation on Contracting States to grant leave to enter or leave to remain in order to achieve family reunion with a sponsor who has been granted refugee status in the host state, but the UN Human Rights Committee exhorts Contracting States to do this.[14]Mr Mosira was given leave to enter and was accorded “refugee status” in 2004 pursuant to the 2003 policy governing applications made by family members who wanted to be reunited with a person in the UK who has been “recognised as a refugee”, as Mr Mosira’s mother had been. Paragraph 3.1 of the 2003 policy provided as follows:
“3.1 Where the sponsor has refugee status If a person has been recognised as a refugee in the UK we will normally recognise family members in line with them. If the family are abroad we will normally agree to their admission as refugees. It may not always be possible to recognise the family abroad as refugees – e.g. they may have a different nationality to the sponsor or they may not wish to be recognised as refugees. However, if they meet the criteria set out in paragraph 2 [as Mr Mosira did, as the minor child of the sponsor with refugee status] they should be admitted to join the sponsor. The sponsor is not expected to meet the maintenance and accommodation requirements of the Immigration Rules.”
[15]The 2003 policy was replaced in 2007 with some new Immigration Rules dealing with family reunion. Under the new Rules, a family member of a person with refugee status shall be granted leave to enter, but will not himself be accorded refugee status.[16]Articles 32 and 33 of the Refugee Convention provide in relevant part as follows:
“Article 32: Expulsion (1) The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. … Article 33: Prohibition of Expulsion or Return (‘Refoulement’) (1) No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

Article 33: Prohibition of Expulsion or Return (‘Refoulement’)

[17]By section 72 of the Nationality, Immigration and Asylum Act 2002, Parliament has made provision in relation to the construction and application of Article 33(2) of the Refugee Convention. Section 72(2) provides:
“A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is – (a) convicted in the United Kingdom of an offence, and (b) sentenced to a period of imprisonment of at least two years.”
Sub-section (6) provides:
“A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.”
[18]Section 82 of the 2002 Act defines what decisions qualify as an “immigration decision” in relation to which an appeal will lie to the FTT. A decision by the Secretary of State that an automatic deportation order should be made in accordance with section 32(5) of the 2007 Act constitutes an immigration decision in the relevant sense: see section 82(3A).[19]Section 84(1) of the 2002 Act sets out the permissible grounds of appeal in relation to an immigration decision. These include, at sub-paragraph (e), “that the decision is … not in accordance with the law”, and at sub-paragraph (g), “that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.”

Factual background

[20]Mr Mosira’s mother was granted asylum (refugee status) in 2001 purely because of the lack of medical facilities available in Zimbabwe to treat her medical condition as HIV+: FTT decision, paras. [5(i)] and [6]; UT decision of August 2015, para. [3]. As the FTT found as a fact on the available evidence, “There was no political element to the asylum granted to [her]” ([6]). Accordingly, it was found that she was granted refugee status even though there was no determination that she met the test for a refugee under Article 1A of the Refugee Convention.[21]In September 2004 Mr Mosira applied from Zimbabwe under the 2003 policy for leave to enter as the minor child of a sponsor in the United Kingdom who had been recognised as a refugee. His application was successful and he arrived in the United Kingdom on 27 November 2004 and was himself granted refugee status with indefinite leave to enter in accordance with para. 3.1 of the 2003 policy. As with his mother, this happened even though there was no determination that he met the test for a refugee under Article 1A of the Refugee Convention.[22]In December 2010 Mr Mosira’s father died in Zimbabwe and Mr Mosira, his mother and his sister returned there to attend his funeral. He came back to the United Kingdom in February 2011. His ability to travel to Zimbabwe in this way tended to indicate that he is not at risk of significant ill-treatment there.[23]On 14 September 2012 Mr Mosira was sentenced to concurrent terms of three years’ imprisonment for the two counts of sexual activity with a girl aged under 16 referred to above.[24]On 7 December 2012 the Secretary of State notified Mr Mosira that he was liable to automatic deportation under section 32 of the 2007 Act, and asked him to provide any evidence regarding whether any exceptions under section 33 of that Act applied. By a response dated 23 December 2012, Mr Mosira said that he could not be returned to Zimbabwe because he would be in grave danger there. This seems to have been the first attempt by Mr Mosira to maintain that he could himself satisfy the test to be a “refugee” in Article 1A of the Refugee Convention, among other things.[25]On 8 July 2013 the Secretary of State invited Mr Mosira to make representations to rebut the presumption in section 72(2) of the 2002 Act that he constitutes a danger to the community of the United Kingdom. At this stage, it seems the Secretary of State thought that Mr Mosira might be able to bring himself within the scope of Article 33(1) of the Refugee Convention by reason of the risk of ill-treatment he would face upon return to Zimbabwe – hence the relevance of Article 33(2) and section 72.[26]In Mr Mosira’s representations in response, dated 21 July 2013, he maintained that he would be at real risk of persecution if returned to Zimbabwe due to the ruling ZANU-PF regime’s suspicions regarding his political opinions, as many members of his family are supporters of the Movement for Democratic Change (“MDC”) opposition party. The Secretary of State, however, considered that Mr Mosira failed to rebut the presumption in section 72(2).[27]On 28 November 2013, the Secretary of State gave notification to Mr Mosira of her intention to cease his refugee status pursuant to Article 1C of the Refugee Convention and para. 339A of the Immigration Rules and inviting representations from him. Since Mr Mosira had not been granted refugee status pursuant to para. 334 of the Immigration Rules and had not up till this point been recognised by the Secretary of State as someone who met the definition of a “refugee” in Article 1A of the Refugee Convention, it is open to doubt whether this was an appropriate procedural step for the Secretary of State to take. Whatever the position in that regard, the Secretary of State said that in her view circumstances in Zimbabwe had improved in recent years and that Mr Mosira could safely return there.[28]On 20 December 2013 Mr Mosira’s legal representatives made written representations to the effect that he would face a real risk of significant ill-treatment if he were returned to Zimbabwe, on account of his association with the MDC.[29]By a decision dated 27 February 2014, set out in a letter dated “X March 2014” [sic], the Secretary of State explained that she was unpersuaded by Mr Mosira’s representations; that “the circumstances which led to a grant of asylum status [to Mr Mosira]” had been reviewed and it was “considered that they have fundamentally and durably changed” for the purposes of Article 1C and para. 339A(v) by reason of improvements in the political situation in Zimbabwe; and that in her view Mr Mosira did not have a sufficient profile as a supporter of the MDC to face a real risk of persecution for the purposes of the Refugee Convention or a real risk of violation of his Convention rights under Articles 2 and 3 of the ECHR. According to the Secretary of State, the objective evidence set out in her letter of 28 November 2013 “demonstrates that your fear of persecution is no longer applicable on the basis that there has been a fundamental and non-temporary change in Zimbabwe”. The decision letter stated at para. 44:
“You do not have a right of appeal against the decision to cease your refugee status. However, you will be afforded an opportunity to appeal against the accompanying immigration decision.”
[30]On 16 April 2014 the Secretary of State issued a decision that section 32(5) of the 2007 Act applied in Mr Mosira’s case, according to which she was obliged to issue a deportation notice in respect of him. The Secretary of State was satisfied that none of the exceptions in section 33 of the 2007 Act applied. As regards the Refugee Convention, the Secretary of State relied on her decision of 27 February 2014 to revoke Mr Mosira’s refugee status.[31]The decision of 16 April 2014 was an “immigration decision” for the purposes of section 82 of the 2002 Act, and Mr Mosira appealed against it. In his notice of appeal he maintained that he would be at risk of persecution if returned to Zimbabwe. He also stated in general terms that he “maintains he qualifies for Humanitarian Protection” (sc. under or equivalent to that under the Refugee Convention).[32]I pause here to observe that at this point it was open to the Secretary of State to seek to respond to the appeal by arguing(a) Mr Mosira was not a “refugee” as defined in Article 1A of the Refugee Convention and never had been (nor had he been recognised under para. 334 of the Immigration Rules as having refugee status), so there was no impediment arising from the Refugee Convention to his deportation to Zimbabwe and it was simply unnecessary to consider or apply Article 1C(5) of the Convention and para. 339A(v) of the Rules to remove that status;(b) alternatively, if Mr Mosira was entitled to maintain that he had refugee status attracting protection under or equivalent to that under the Refugee Convention (e.g. on the grounds that he had a legitimate expectation in domestic law to equivalent protection by reason of the grant of refugee status to him pursuant to the 2003 policy, which could entitle him to rely on the ground of appeal in section 84(1)(e) of the 2002 Act, if not on the ground in section 84(1)(g)), he could still lawfully be deported in accordance with the Refugee Convention on the grounds of “public order” as set out in Article 32(1); and(c) there was no impediment to his deportation arising from the ECHR and the Human Rights Act 1998. On the Secretary of State’s case that Mr Mosira did not face a real risk of ill-treatment if returned to Zimbabwe, Article 33 of the Refugee Convention and section 72 of the 2002 Act were irrelevant.[33]If, on the other hand, Mr Mosira showed on the appeal that he would be at real risk of ill-treatment if deported to Zimbabwe, he would be entitled to succeed in his appeal on the grounds that deportation to Zimbabwe would violate his rights under Article 2 or Article 3 of the ECHR, whatever the position under the Refugee Convention might be. He would also be entitled to succeed on the basis of the Refugee Convention on the grounds of the same risk of ill-treatment, provided that the Secretary of State could not rely on Article 33(2), with the Secretary of State having the benefit of the presumption in section 72 in that regard.[34]Unfortunately, the Secretary of State did not present her case on the appeal in line with this analysis. Instead, some confusion arose. At the hearing before the FTT the Secretary of State’s then representative accepted that it was necessary for the Secretary of State to show that she had been entitled to decide to cease to recognise Mr Mosira as a refugee by virtue of the application of Article 1C(5) of the Refugee Convention and para. 339A(v) of the Immigration Rules. The FTT therefore addressed that issue. It held that the Secretary of State had been entitled so to decide by virtue of the fact that he was granted asylum as the dependent child of a person granted refugee status, but there had been a permanent change in that regard because he was now an adult: [9]. The FTT also held that the change in “the circumstances in connection with which he has been recognised as a refugee” required by Article 1C(5) and para. 339A(v) could relate only to the circumstances of Mr Mosira himself, and not to the circumstances of anyone else, including his mother. As events have transpired, neither party now supports either part of this analysis by the FTT.[35]Having considered the relevant evidence, the FTT found that Mr Mosira has no profile as an MDC activist and that there was no real risk that he would be ill-treated by the authorities if he were returned to Zimbabwe. It also found that although he enjoyed a private life in the United Kingdom for the purposes of protection under Article 8 of the ECHR, his deportation would be proportionate because of the seriousness of his offending. This was so despite the FTT accepting that he was remorseful in relation to his offending ([32]) and assessing that the likelihood of re-offending may have decreased ([32]-[33]). Accordingly, the FTT dismissed Mr Mosira’s appeal.[36]Mr Mosira appealed to the Upper Tribunal. In the Upper Tribunal decision of September 2014, it upheld the FTT’s findings that Mr Mosira faces no real risk of ill-treatment upon return to Zimbabwe ([5]), but held that the appeal should be allowed on the basis that Mr Mosira had not been given an opportunity to respond to any case put forward by the Secretary of State in her cessation of status notification and decision letter that his refugee status should be revoked for the reason that he is now an adult and the FTT had been wrong to raise the issue itself where Mr Mosira had not been afforded such an opportunity. The Upper Tribunal directed that the decision should be re-made by the Upper Tribunal, and indicated that at the hearing the issue of change of circumstances by reason of becoming an adult should be addressed, as well as these other issues:
“(i) In what circumstances may it be appropriate to revoke the refugee status of an individual who has become a refugee only by virtue of being the child of a person recognised as a refugee? (ii) In the present case, what is the relevance of the fact that the appellant’s mother was granted refugee status only on account of the fact that she was HIV positive? (iii) What is the relevance of the desirability of an individual’s integration in the host nation and/or his or her own family and the question of cessation of refugee status?”
[37]These were, if I may say so, sensible questions to raise and it might perhaps have been hoped that they would have led to those acting for the Secretary of State to re-assess the proper analysis of the issues in the case, as sketched out above. However, that did not occur. Instead, the Secretary of State continued to focus on whether it had been open to her to cease to treat Mr Mosira as a refugee by virtue of application of Article 1C(5) and para. 339A(v). The Secretary of State expressly disavowed the reasoning of the FTT that there had been a relevant change of circumstances for the purposes of those provisions by reason of Mr Mosira becoming an adult (para. 3 of the Secretary of State’s skeleton argument for the resumed Upper Tribunal hearing). The Secretary of State also expressly accepted that Mr Mosira was to be treated as a refugee for the purposes of the Refugee Convention: “It is accepted that Refugee Status is precisely that, and a person remains a refugee (even if granted in error) until he or she re-avails themselves of the protection of their country of origin, acquires another nationality or is given a decision that their refugee status has ceased” (para. 6). The Secretary of State sought to maintain that there had been a relevant change in circumstances because of a change in the general situation in Zimbabwe in recent years (para. 7).[38]In its August 2015 decision, the Upper Tribunal held that it had not been open to the Secretary of State to proceed by way of cessation of Mr Mosira’s refugee status. This was because the changes in circumstances in Zimbabwe had nothing to do with the original basis on which Mr Mosira was granted refugee status, as a child family member of someone in the United Kingdom who had been granted refugee status: [8]-[9].[39]Since the Upper Tribunal considered that Mr Mosira should be regarded as a refugee, the Upper Tribunal proceeded to consider whether he could be deported, consistently with the terms of the Refugee Convention. Although, in view of the finding which had previously been made (and was not under challenge) that Mr Mosira would not face a real risk of ill-treatment upon return to Zimbabwe, the analysis here should have proceeded under Article 32(1) of the Refugee Convention by reference to the concept of “public order” in that provision, the only argument presented about removal of a refugee appears to have been by reference to Article 33(2) of the Refugee Convention and section 72 of the 2002 Act.[40]The Upper Tribunal heard oral evidence from Mr Mosira. It also reviewed two reports from Mr Mosira’s probation officer which indicated that his risk of re-offending was assessed to be low and had fallen significantly by the time of the hearing. In the first report, dated 22 September 2014, the probation officer reported on the sex offender work which Mr Mosira had completed; gave an assessment that he posed a high risk of reconviction for a sexual offence, using the relevant static risk assessment statistical matrix; but also gave an overall assessment of dynamic risk of re-offending in his case as “low”, having regard to his insight into his offending and progress in using problem solving and avoidance skills which would help him to stop himself from offending in future. In her second report, dated 13 July 2015, the probation officer gave an update of the position. Mr Mosira had made progress on an intensive six month sex offender programme; he was now assessed as posing a low likelihood of re-offending; there had been no further incidents; and he was now in a healthy and supportive relationship with a partner.[41]The Upper Tribunal held that on the available evidence Mr Mosira had rebutted the presumption in section 72(2) that he constitutes a danger to the community. Accordingly, it is implicit in its August 2015 decision that the Upper Tribunal arrived at the conclusion that Mr Mosira is a person with refugee status for the purposes of the Refugee Convention and that his removal to Zimbabwe could not be justified according to the test set out in Article 33(2).[42]The Secretary of State now appeals, with permission granted by Rafferty LJ, against the August 2015 decision of the Upper Tribunal. On this appeal she is represented by Mr Zane Malik, who did not appear below.

Discussion

[43]The grounds of appeal filed by the Secretary of State, not drafted by counsel, were discursive and rather difficult to follow. The original version of Mr Malik’s skeleton argument dated 10 December 2015 could also fairly be described as rather discursive. It recast the grounds of appeal in various ways. Shortly before the hearing in this court, after those representing Mr Mosira had prepared the case and filed their skeleton argument, Mr Malik filed a new skeleton argument dated 11 May 2017. In that skeleton argument, he re-formulated the Secretary of State’s case to take four points: a) the Upper Tribunal misunderstood the scope of its appellate jurisdiction, in that it erred in law in adjudicating on the legality of the Secretary of State’s decision to cease to treat Mr Mosira as having refugee status; b) the Upper Tribunal erred in law in holding that the cessation of Mr Mosira’s refugee status was unlawful; c) the Upper Tribunal erred in law in assuming Mr Mosira ought to be treated as a refugee in absence of a lawful cessation of his refugee status even in the circumstances where there is no current risk of persecution or ill-treatment on return to Zimbabwe; and d) the Upper Tribunal erred in law in holding that Mr Mosira had rebutted the presumption under section 72(2) of the 2002 Act, in that it failed to have any or any proper regard to the factual findings made by the FTT and to the seriousness of his criminal offending.[44]Point (c) is a new ground. As further explained to us at the hearing, it is an argument that Article 1C(5) of the Refugee Convention and the corresponding immigration rule are simply irrelevant in a case in which the individual in question has never been recognised by the Secretary of State as being a refugee within the definition of that term in the Refugee Convention. This argument did not emerge as a distinct point either in the grounds of appeal or in Mr Malik’s original skeleton argument (see in particular paras. 45-52, in which reference is still made to Article 1C(5) as being the relevant provision). It is a complete departure from the way in which the Secretary of State had put her case at every stage before the Tribunal. It took Mr Drabble QC for Mr Mosira by surprise.[45]Mr Malik did not apply to this Court, either in advance of the hearing or at the hearing itself, for permission to withdraw the concession made below that the case turns upon application of Article 1C(5) and para. 339A(v) of the Immigration Rules; to amend the grounds of appeal; or for permission to rely upon a revised skeleton argument introducing this new point. We heard Mr Malik introduce the argument de bene esse, without prejudice to Mr Drabble’s right to object to it.[46]I regard the new point, in the form it took when explained to us at the hearing, as constituting an arguable issue of law. It might have the potentially attractive consequence of meaning that it would be unnecessary to apply Article 1C(5) in circumstances where it makes little or no sense to do so, precisely because one is dealing with an individual who has never been a refugee as defined in the Refugee Convention.[47]However, I am satisfied that justice requires that we refuse permission for the Secretary of State to raise it at the eleventh hour on this appeal. It is not fair to Mr Mosira to do so. Also, in large part because of the way in which Mr Drabble was taken by surprise, we have not had the benefit of full, informed and properly researched argument on the point. Mr Drabble did his best to touch on some of the further issues which would have to be addressed if the point were introduced on the appeal, but had not had a fair chance to complete his research or develop his submissions in response. Mr Malik himself made no attempt in his submissions to examine what the effect of the 2003 policy might be if this new argument were correct as a matter of interpretation of the Refugee Convention, e.g. by referring us to the domestic principles and case-law on legitimate expectations. It is neither just nor appropriate for this court to give permission for this new point to be taken by the Secretary of State. For these reasons, I consider that this appeal should proceed by reference to Mr Malik’s reformulated points (a), (b) and (d) above.[48]Point (a) may be shortly disposed of. There was a relevant immigration decision for the purposes of section 82 of the 2002 Act in relation to Mr Mosira’s deportation, giving rise to a right of appeal. On the appeal, Mr Mosira was entitled to argue that his removal from the United Kingdom in consequence of that decision “would breach the United Kingdom’s obligations under the Refugee Convention”, which is what he did argue. It is no answer to that ground of appeal that he had not sought judicial review of the Secretary of State’s cessation decision of 27 April 2014. On his appeal to the Tribunal he was entitled to an assessment by the Tribunal of whether his removal would in fact breach the relevant obligations under the Refugee Convention, having regard to evidence heard and facts found by the Tribunal. The Tribunal only reviewed the legality of the Secretary of State’s cessation decision in the sense that the Secretary of State advanced the reasons given in that decision as reasons why the Tribunal should come to the same conclusion as her, namely that the deportation of Mr Mosira would not infringe the United Kingdom’s obligations under the Refugee Convention. The Tribunal did not exceed its jurisdiction in examining the case presented by Mr Mosira. The unattractiveness of Mr Malik’s submission is underlined by the fact that the Secretary of State herself, at para. 44 of the cessation decision letter (quoted above), indicated that Mr Mosira had no appeal in relation to the cessation decision but would be able to appeal against the accompanying immigration decision which followed on 16 April 2014.[49]Point (b) is also a short point, shortly and correctly answered by the Upper Tribunal. Mr Mosira was not granted refugee status by reason of the threat of ill-treatment by the authorities in Zimbabwe. Nor was his mother. Therefore the change in the threat posed by the authorities in Zimbabwe has no bearing upon “the circumstances in connection with which [Mr Mosira] has been recognised as a refugee”. He was granted refugee status under the 2003 family reunion policy, to join someone in the United Kingdom who had (and continues to have) refugee status here: those were the “circumstances in connection with which he [was] recognised as a refugee”. It cannot be said that the change in the threat posed by the authorities in Zimbabwe means that those “circumstances” have ceased to exist.[50]Finally, point (d) also is a narrow and short point. Although the Secretary of State could have sought to argue in the Tribunal that, even on the footing that Mr Mosira was to be regarded as a refugee, his expulsion to Zimbabwe (where he did not face a real risk of ill-treatment) could be regarded as consistent with the United Kingdom’s obligations under the Refugee Convention if it was on grounds of “public order” within Article 32(1) - a potentially wider category of case than that contemplated by Article 33(2) - she did not put her case in that way. Instead, she chose to argue that Mr Mosira’s expulsion/removal was justified for public order type grounds only because she could show that she could meet the test in Article 33(2). It was only in that context that her reliance on section 72 of the 2002 Act made sense. Since the Secretary of State chose to put her public order case in this way, she cannot complain if the Upper Tribunal examined it on its merits. She presented no public order argument apart from this.[51]Upon examination of the case presented by the Secretary of State, the Upper Tribunal found that she had failed to make it out. It found that Mr Mosira had rebutted the presumption that he represented a danger to the community under section 72(2), as he is entitled to seek to do: see section 72(6). Mr Malik accepts that he has to show that the Upper Tribunal was irrational in reaching its conclusion under section 72. In my view, that is an unsustainable contention. The Upper Tribunal had material before it on which it was lawfully entitled to come to the conclusion it did: its own assessment of Mr Mosira in giving evidence to the Upper Tribunal, the reports from his probation officer and the findings regarding remorse and reduction of risk also made by the FTT.

Conclusion

[52]This is a case in which the legal analysis proposed by the Secretary of State became confused at an early stage and was never reviewed and rectified. It also became procedurally very messy. However, the ultimate conclusion is in my view clear: the appeal should be dismissed.

Henderson LJ:

[53]I agree.

Black LJ:

[54]I also agree.

Cited in 5 later judgments