The Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994

[2018] EWCA Civ 994

Case No C5/2016/3106

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

the Upper Tribunal (Immigration and Asylum Chamber)

Upper Tribunal Judge Clive Lane

AA014612015

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 02/05/2018

Before

LADY JUSTICE ARDEN

LORD JUSTICE PETER JACKSON

Between

The Secretary of State for the Home DepartmentDefendant/ Appellant

MA (Somalia)Claimant/ Respondent

John-Paul Waite (instructed by Government Legal Department) for Appellant

Daniel Sills (instructed by JD Spicer Zeb) for Respondent

Hearing Hearing dates : 17 April 2018

Judgment Approved

LADY JUSTICE ARDEN :

Issues for Determination and Summary of Conclusions

[1]The issues which we have to decide on this appeal include:(1) the test to be applied by the state which recognised a person as a refugee (“the recognising state”) when determining whether (or that) a refugee’s status can be ended (“a “cessation decision”) under the Qualification Directive (see paragraph 3 below),

(2) whether a cessation decision can be made without also considering the question whether the refugee’s rights under

Article 3 of the European Convention on Human Rights

(“the Convention”) would be violated if he were to be returned to his country of origin,

(3) whether Article 3 would be violated if a person to be returned is at risk of being subjected to living standards which fall below humanitarian standards in his country of origin,

(4) whether, on the facts of this case, the tribunals applied the right test for an appeal from a cessation decision, and

(5) whether, in the case of the First-tier Tribunal (“the FTT”), any remittal should be on the basis of the existing factual findings or whether certain of those findings should be set aside because the outcome of the fact-finding process was perverse. These issues arise from the orders of the FTT and the Upper Tribunal in these proceedings allowing appeals from the Secretary of State’s decision to cease the respondent’s refugee status under the Qualification Directive.

[2]For the reasons given below, and in the light of the careful submissions that we have had on the important decision of the Court of Justice of the European Union (“CJEU”) in Joined Cases C-175/08, C-176/08, C-178/08, C0179/08, Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi & Dier Jamal v Bundesrepublik Deutschland, 2 March 2010 (“Abdulla”), I have concluded that:(1) A cessation decision is the mirror image of a decision determining refugee status. By that I mean that the grounds for cessation do not go beyond verifying whether the grounds for recognition of refugee status continue to exist. Thus, the relevant question is whether there has been a significant and non-temporary change in circumstances so that the circumstances which caused the person to be a refugee have ceased to apply and there is no other basis on which he would be held to be a refugee. The recognising state does not in addition have to be satisfied that the country of origin has a system of government or an effective legal system for protecting basic human rights, though the absence of such systems may of course lead to the conclusion that a significant and non-temporary change in circumstances has not occurred.

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

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

(4) Article 3 is not normally violated by sending a refugee back to his country of origin where there is a risk that his living conditions will fall below humanitarian standards.

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

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

The Qualification Directive

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

[4]The Office of the UN High Commission for Refugees (“UNHCR”) has a supervisory responsibility for providing guidance on the operation of the Refugee Convention. For instance, Recital 15 of the QD states that consultations with the UNHCR “may provide valuable guidance for Member States when determining refugee status according to Article 1 of the Geneva Convention”. In Adan v Secretary of State for the Home Department

[2001] 2 AC 477

at 520, Lord Steyn held that “the UNHCR Handbook, although not binding on states, has high persuasive authority, and is much relied on by domestic courts and tribunals: Aust, Modern Treaty Law and Practice (2000), p 191 [now (2013) (3rd ed) (Cambridge) p 212].”

History of respondent’s refugee status

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

[6]Refugee status falls to be considered in the context of many diverse societies and political systems. In the case of Somalia, clans play an important part in the governance of the country and the structure of its communities. The Home Office Country Information Guidance – South and Central Somalia: Majority Clans and Minority Groups states that: due to the absence of functioning structures in parts of Somalia the clans and their elders have regained a political function and a substantial influence on the organisation of society. However, clans have no centralised administration or government. During the civil war in Somalia, clan elders increasingly became targets of violence, which eroded their power, nevertheless they still have a significant influence on society and politics. (The civil war affected Mogadishu until at least 2011). The report later stated that the clan relationship was regulated by Somali customary law, known as xeer, which is used to govern communities. According to the Home Office report, citing a January 2015 Minority Rights Group International report, in some cases, the clan may provide a social security welfare system for its members.

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

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

MOJ: The Upper Tribunal’s most recent country guidance decision on Mogadishu, showing changed circumstances

[9]On 3 October 2014, the Upper Tribunal handed down a new country guidance decision for Somalia: MOJ and others (Return to Mogadishu) (CG)

[2014] UKUT 442

. This held that ordinary civilians returning to Mogadishu were no longer at any risk from security forces, international forces or terrorist organisations. Such persons would normally look to their family or clans for support on return. The paragraphs relevant to the present appeal read as follows: 406. We consider, in the light of the evidence as a whole, that the position as set out by UNHCR in its report published on 25 September 2013 continues to reflect an appropriate starting point today, upon which to build in the light of our review of the up to date evidence: With regard to Mogadishu, the personal circumstances of an individual need to be carefully assessed. UNHCR considers an IFA/IRA as reasonable only where the individual can expect to benefit from meaningful nuclear and/or extended family support and clan protection mechanisms in the area of prospective relocation. When assessing the reasonableness of an IFA/IRA [internal flight option/internal relocation alternative] in Mogadishu in an individual case, it should be kept in mind that the traditional extended family and community structures of Somali society no longer constitute as strong a protection and coping mechanism in Mogadishu as they did in the past. Additionally, whether the members of the traditional networks are able to genuinely offer support to the applicant in practice also needs to be evaluated, especially given the fragile and complex situation in Mogadishu at present. For the following categories of Somalis, UNHCR would consider that an IFA/IRA will not be reasonably available in the absence of meaningful nuclear and/or extended family support and functioning clan protection: unaccompanied children or adolescents at risk of forced recruitment and other grave violations; young males at risk of being considered Al Shabaab sympathizers and therefore facing harassment from government security forces; elderly people; people with physical or mental disabilities; single women and female single heads of households with no male protection and especially originating from minority clans. In any other exceptional cases, in which the application of an IFA/IRA in Mogadishu is considered even in the absence of meaningful family or clan support to the individual, the person would need to have access to infrastructure and livelihood opportunities and to other meaningful protection and support mechanisms, taking into account the state institutions’ limited ability to provide security and meaningful protection. 407. Distilled to its essence, and on the basis of all the evidence before us, we give the following country guidance:a. Generally, a person who is “an ordinary civilian” (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 15(c) of the Qualification Directive or

Article 3 of the ECHR

b. There has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city. That was not the case at the time of the country guidance given by the Tribunal in AMM .

c. The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered as a whole that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab's resort to asymmetrical warfare on carefully selected targets. The present level of casualties does not amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk.

d. It is open to an “ordinary citizen” of Mogadishu to reduce further still his personal exposure to the risk of “collateral damage” in being caught up in an Al Shabaab attack that was not targeted at him by avoiding areas and establishments that are clearly identifiable as likely Al Shabaab targets, and it is not unreasonable for him to be expected to do so.

e. There is no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including recent returnees from the West.

f. A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer.

g. The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assistance with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.

h. If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:

(i) circumstances in Mogadishu before departure;

(ii) length of absence from Mogadishu;

(iii) family or clan associations to call upon in Mogadishu;

(iv) access to financial resources;

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

(vi) availability of remittances from abroad;

(vii) means of support during the time spent in the United Kingdom;

(viii) why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return. Put another way, it will be for the person facing return to Mogadishu to explain why he would not be able to access the economic opportunities that have been produced by the “economic boom”, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away. 408. It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms. With regard to Mogadishu, the personal circumstances of an individual need to be carefully assessed. UNHCR considers an IFA/IRA as reasonable only where the individual can expect to benefit from meaningful nuclear and/or extended family support and clan protection mechanisms in the area of prospective relocation. When assessing the reasonableness of an IFA/IRA [internal flight option/internal relocation alternative] in Mogadishu in an individual case, it should be kept in mind that the traditional extended family and community structures of Somali society no longer constitute as strong a protection and coping mechanism in Mogadishu as they did in the past. Additionally, whether the members of the traditional networks are able to genuinely offer support to the applicant in practice also needs to be evaluated, especially given the fragile and complex situation in Mogadishu at present. For the following categories of Somalis, UNHCR would consider that an IFA/IRA will not be reasonably available in the absence of meaningful nuclear and/or extended family support and functioning clan protection: unaccompanied children or adolescents at risk of forced recruitment and other grave violations; young males at risk of being considered Al Shabaab sympathizers and therefore facing harassment from government security forces; elderly people; people with physical or mental disabilities; single women and female single heads of households with no male protection and especially originating from minority clans. In any other exceptional cases, in which the application of an IFA/IRA in Mogadishu is considered even in the absence of meaningful family or clan support to the individual, the person would need to have access to infrastructure and livelihood opportunities and to other meaningful protection and support mechanisms, taking into account the state institutions’ limited ability to provide security and meaningful protection. a. Generally, a person who is “an ordinary civilian” (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 15(c) of the Qualification Directive or

Article 3 of the ECHR

. In particular, he will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country. b. There has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city. That was not the case at the time of the country guidance given by the Tribunal in AMM . c. The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered as a whole that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab's resort to asymmetrical warfare on carefully selected targets. The present level of casualties does not amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk. d. It is open to an “ordinary citizen” of Mogadishu to reduce further still his personal exposure to the risk of “collateral damage” in being caught up in an Al Shabaab attack that was not targeted at him by avoiding areas and establishments that are clearly identifiable as likely Al Shabaab targets, and it is not unreasonable for him to be expected to do so. e. There is no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including recent returnees from the West. f. A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer. g. The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assistance with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members. h. If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to: (i) circumstances in Mogadishu before departure; (ii) length of absence from Mogadishu; (iii) family or clan associations to call upon in Mogadishu; (iv) access to financial resources; (v) prospects of securing a livelihood, whether that be employment or self-employment; (vi) availability of remittances from abroad; (vii) means of support during the time spent in the United Kingdom; (viii) why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return. Put another way, it will be for the person facing return to Mogadishu to explain why he would not be able to access the economic opportunities that have been produced by the “economic boom”, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away.

Secretary of State’s cessation decision

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

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

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

[13]The respondent appealed to the FTT.

Decision of the FTT

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

Decision of the Upper Tribunal

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

[16]The Upper Tribunal accepted that the FTT had not dealt with the cessation decision in any depth, concluding at paragraph 7 of its decision: 7. Because he went on subsequently to find that the appellant would, in effect, be destitute upon return to Somalia, the judge has (perhaps understandably) not dealt with the issue in and depth. I have to say, however, that I accepted the force of Mr Sills’ submissions (made before both Tribunals) that the appellant’s criminal offending was not a reason to bring his refugee status to an end and, further, that the requirements set out in the UNHCR Guidelines on International Protection No. 3: Cessation and Refugee Status are clearly not established in the case of Somalia, a geographical area which continues to have no proper functioning unitary government or system of law and justice. It remains difficult to see how the cessation of the appellant’s refugee status can have been made in accordance with those guidelines and also the decision in Abdulla (C-175/08 [2008].

UNHCR Guidelines on the Ceased Circumstances Clauses

[17]The Guidelines to which the Upper Tribunal refers, namely The Guidelines on International Protection No. 3: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the "Ceased Circumstances" Clauses) (10 February 2003) state that: Cessation based on “ceased circumstances” therefore only comes into play when changes have taken place which address the causes of displacement which led to the recognition of refugee status. (paragraph 10)

[18]On the restoration of protection by the country of origin, the Guidelines state: “15. In determining whether circumstances have changed so as to justify cessation under Article 1C(5) or (6), another crucial question is whether the refugee can effectively re-avail him- or herself of the protection of his or her own country. Such protection must therefore be effective and available. It requires more than mere physical security or safety. It needs to include the existence of a functioning government and basic administrative structures, as evidenced for instance through a functioning system of law and justice, as well as the existence of adequate infrastructure to enable residents to exercise their rights, including their right to a basic livelihood. 16. An important indicator in this respect is the general human rights situation in the country. Factors which have special weight for its assessment are the level of democratic development in the country, including the holding of free and fair elections, adherence to international human rights instruments, and access for independent national or international organisations freely to verify respect for human rights. There is no requirement that the standards of human rights achieved must be exemplary. What matters is that significant improvements have been made, as illustrated at least by respect for the right to life and liberty and the prohibition of torture; marked progress in establishing an independent judiciary, fair trials and access to courts: as well as protection amongst others of the fundamental rights to freedom of expression, association and religion. Important, more specific indicators include declarations of amnesties, the repeal of oppressive laws, and the dismantling of former security services.

Adequacy of Secretary of State’s grounds of appeal to the Upper Tribunal

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

[20]The Secretary of State in response relies on ground 11 of her grounds of appeal to the Upper Tribunal, which read as follows: 11. In these circumstances, it is respectfully submitted that the Judge’s conclusion that the appellant continues to qualify as refugee discloses failures to adequately resolve material conflict in the evidence; and amounts to material legal misdirection and failure to provide adequate reasons for dispositive findings.

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

Submissions on the cessation decision and Article 3

[22]Mr John-Paul Waite, for the Secretary of State, criticises the test for cessation of refugee status applied by the FTT. It wrongly focused on humanitarian conditions, which are relevant to

Article 3 of the Convention

(although on his submission the respondent had not invoked that Article nor did the FTT expressly refer to it), and not to a cessation decision.

[23]On Mr Waite’s submission, the correct test was whether the fear which had led to the respondent previously being recognised as a refugee still existed. He submits that a person is a refugee for the purposes of the Refugee Convention if he falls within Article 1A(2) of that Convention, which provides: For the purposes of the present Convention, the term “refugee” shall apply to any person who… owing to [a] 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

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

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

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

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

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

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

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

[31]In Said, Burnett LJ, with whom the other members of the Court agreed, analysed paragraphs 407 and 408 of MOJ and held that those paragraphs should be read as drawing a distinction between matters relevant to refugee status and matters relevant to Article 3: 26. Paragraph 407(a) to (e) are directed to the issue that arises under article 15(c) of the Qualification Directive. Sub-paragraphs (f) and (g) establish the role of clan membership in today's Mogadishu, and the current absence of risk from belonging to a minority clan. Sub-paragraph (h) and paragraph 408 are concerned, in broad terms, with the ability of a returning Somali national to support himself. The conclusion at the end of paragraph 408 raises the possibility of a person's circumstances falling below what “is acceptable in humanitarian protection terms.” It is, with respect, unclear whether that is a reference back to the definition of “humanitarian protection” arising from article 15 of the Qualification Directive. These factors do not go to inform any question under article 15(c). Nor does it chime with article 15(b), which draws on the language of

article 3 of the Convention

, because the fact that a person might be returned to very deprived living conditions, could not (save in extreme cases) lead to a conclusion that removal would violate article 3. 27 The Luxembourg Court considered article 15 of the Qualification Directive in Elgafaji v Staatssecretaris van Justitie

[2009] 1 WLR 2100

and in particular whether article 15(c) provided protection beyond that afforded by

article 3 of the Convention

. The answer was yes, but in passing it confirmed that article 15(b) was a restatement of article 3. At para [28] it said: In that regard, while the fundamental right guaranteed under

Article 3 of the ECHR

forms part of the general principles of Community law, observance of which is ensured by the Court, and while the case-law of the European Court of Human Rights is taken into consideration in interpreting the scope of that right in the Community legal order, it is, however, Article 15(b) of the Directive which corresponds, in essence, to

Article 3 of the ECHR

. By contrast, Article 15(c) of the Directive is a provision, the content of which is different from that of

Article 3 of the ECHR

, and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the ECHR . 28 In view of the reference in the paragraph immediately preceding para 407 to the UNHCR evidence, the factors in paras 407(h) and 408 are likely to have been introduced in connection with internal flight or internal relocation arguments, which was a factor identified in para 1 setting out the scope of the issues before UTIAC. Whilst they may have some relevance in a search for whether a removal to Somalia would give rise to a violation of

article 3 of the Convention

, they cannot be understood as a surrogate for an examination of the circumstances to determine whether such a breach would occur. I am unable to accept that if a Somali national were able to bring himself within the rubric of para 408, he would have established that his removal to Somalia would breach

article 3 of the Convention

. Such an approach would be inconsistent with the domestic and Convention jurisprudence which at para 34 UTIAC expressly understood itself to be following. In that regard, while the fundamental right guaranteed under

Article 3 of the ECHR

. By contrast, Article 15(c) of the Directive is a provision, the content of which is different from that of

Article 3 of the ECHR

, and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the ECHR .

[32]On that basis, humanitarian standards, as referred to in paragraph 408 of MOJ, are only relevant to

Article 3 of the Convention

and not to a cessation decision. Therefore, submits Mr Waite, the FTT were wrong to hold that the cessation decision was defective because it was likely that the respondent would have to live in conditions that fell below acceptable humanitarian standards.

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

[34]This Court held in Said that Article 3 was intended to protect persons from violations of their civil and political rights, not their social and economic rights. In summary, the return of a person who was not at risk of harm because of armed conflict or violence would not in the case of economic deprivation violate Article 3 unless the circumstances were such as those in N v UK

[2005] 2 AC 296

, where a person was in the terminal stages of illness and lack access to facilities for treatment for his illness in his country of origin. In Said, this Court analysed the case law in the following lengthy passage: [12] The law relating to the reach of art 3 in preventing removal of foreign nationals from the United Kingdom is well settled. It was most recently reviewed in this court by Laws LJ in GS (India) v. Secretary of State for the Home Department

[2014] EWCA Civ 40

;

[2015] 1 WLR 3312

with whom Sullivan LJ agreed on this aspect. Underhill LJ agreed expressly with Laws LJ's analysis of the Strasbourg authorities of MSS v Belgium & Greece 53 EHRR 28, Sufi and Elmi v United Kingdom 54 EHRR 209, SHH v United Kingdom

(2013) 57 EHRR 531

and Tarakhel v Switzerland App No 29217/12 between paras 54 and 62 of his judgment. I shall return shortly to these cases. [13] The GS case concerned a number of appellants whose removal was resisted on medical grounds. Permission to appeal had been given in six cases of illegal entrants, rather than “health tourists”. The House of Lords had held in N v Secretary of State for the Home Department

[2005] 2 AC 296

that

art 3 of the Convention

did not oblige a contracting state to provide aliens indefinitely with medical treatment which was unavailable in their home countries, even if the absence of such treatment on return would significantly shorten their lives. It concluded that art 3 could be extended to prevent removal only in very exceptional circumstances. That was where the present state of health of the person who was subject to expulsion was such that, on compelling humanitarian grounds, he ought not to be expelled unless it could be shown that the medical and social facilities were available to him in the receiving state to prevent acute suffering while he was dying. Despite N's condition (AIDS for which she would be unlikely to obtain suitable treatment or family support in Uganda) she was not in a condition where art 3 would prevent her removal. [14] The House of Lords considered the decision of the Strasbourg Court in D v United Kingdom

(1997) 24 EHRR 423

where the proposed removal of a man to St Kitts was held to violate art 3. In N v United Kingdom 47 EHRR 885, which followed the House of Lords' decision, the Strasbourg Court itself summarised why exceptionally that was so. The very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him even a basic level of food, shelter or social support: para [42]. It narrowly circumscribed the circumstances in which the principle in the D case would apply to an expulsion case of someone who was suffering from a life-threatening illness. Its overall conclusions are found in paras 42 to 45 of the judgment. In short: i) Those subject to expulsion are not entitled to remain to continue to benefit from medical, social or other forms of assistance provided by the expelling state. The fact that he would find himself in reduced circumstances, or with reduced life expectancy, does not of itself give rise to breach of art 3; ii) The decision to remove someone suffering from a serious physical or mental illness to inferior facilities in the receiving country would give rise to a violation of art 3 only in a very exceptional case, where the humanitarian grounds against removal are very compelling; iii) The circumstances of D's case provided such exceptional and compelling circumstances. iv) There may other exceptional cases but the high threshold should be maintained because “the alleged future harm would emanate not from the intentional acts or omissions of public bodies or non-state bodies, but instead from the a naturally occurring illness and the lack of sufficient resources to deal with it; v) The Convention is essentially concerned with civil and political rights. There is no obligation to alleviate disparities in the availability of treatment across the world through the provision of free and unlimited medical treatment; vi) These principles apply to the expulsion of any person with a serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised treatment not available in the receiving state. [15] The significance of point (iv) in the summary is that the paradigm case, as Laws LJ described it at para 39 of the GS case, in which art 3 prevents removal involves the necessary risk of being subject to an intentional act which constitutes torture, or inhuman or degrading treatment. Medical cases, and I would add cases where the complaint is that someone returned would be destitute on arrival, do not fall within that paradigm. Laws LJ reviewed the decisions of the Strasbourg Court in the case of MSS, Sufi and Elmi, SHH and Tarakhel which, in addition to the medical exception narrowly defined in the D and N cases, illuminate the limited circumstances in which it is appropriate to depart from that paradigm in art 3 cases. [16] In the MSS case the Strasbourg Court decided that Belgium would violate the art 3 rights of MSS, an Afghan asylum seeker, were he to be returned to Greece under the Dublin Convention. That was because of the dire conditions in which he would live in Greece whilst his claim was considered. Responsibility for those conditions rested with the Greek state. In Sufi and Elmi the applicants were Somali nationals who had committed criminal offences in this country. The Secretary of State proposed to deport them. At para 282 of its judgment the court said:

“If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or the state's lack of resources to deal with a naturally occurring phenomenon, such as drought, the test in N v United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct or indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab's refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between one-third and one-half of all Somalis are living in a situation of serious deprivation.”

Al-Shabaab is an Islamist terrorist organisation. The state of affairs described in this extract from the judgment is precisely what has since improved; and it is the improvements which are reflected in the Somalia CG. But on the basis of the evidence as to the conflict at the time of the Sufi and Elmi the Strasbourg Court decided that the circumstances it had described meant that the approach in MSS, rather than N, should be followed. [17] In para 57 of the GS case, Laws LJ described this as a “fork in the road, on the court's own approach” between the two different types of case. He then referred to SHH v United Kingdom, concerning a severely disabled Afghan applicant, who sought to rely upon the MSS approach, but failed. His problems on return would result from inadequate social provision and want of resources. The approach in the N case was the correct one. Finally, he considered Tarakhel which was another case about returning asylum seekers under the Dublin Convention, this time to Italy, where there were said to be systemic deficiencies in reception conditions which were the responsibility of the Italian state. The MSS approach was applied. [18] These cases demonstrate that to succeed in resisting removal on art 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in para 282 of Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases. i) Those subject to expulsion are not entitled to remain to continue to benefit from medical, social or other forms of assistance provided by the expelling state. The fact that he would find himself in reduced circumstances, or with reduced life expectancy, does not of itself give rise to breach of art 3; ii) The decision to remove someone suffering from a serious physical or mental illness to inferior facilities in the receiving country would give rise to a violation of art 3 only in a very exceptional case, where the humanitarian grounds against removal are very compelling; iii) The circumstances of D's case provided such exceptional and compelling circumstances. iv) There may other exceptional cases but the high threshold should be maintained because “the alleged future harm would emanate not from the intentional acts or omissions of public bodies or non-state bodies, but instead from the a naturally occurring illness and the lack of sufficient resources to deal with it; v) The Convention is essentially concerned with civil and political rights. There is no obligation to alleviate disparities in the availability of treatment across the world through the provision of free and unlimited medical treatment; vi) These principles apply to the expulsion of any person with a serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised treatment not available in the receiving state.

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

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

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

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

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

submissions on the tribunals’ reasoning

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

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

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

[43]Mr Waite cites in support MM (Zimbabwe) v Secretary of State for the Home Department

[2017] 4 WLR 132

. In this case, the Secretary of State decided to cease the refugee status of a Zimbabwean who had previously been a political activist. One of the relevant circumstances was that he had been in the UK for ten years and had not been politically active in that time. Mr Waite argues that this case demonstrates that courts and tribunals should look at the wider circumstances of an individual case.

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

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

[46]Mr Sills submits that MM (Zimbabwe) is of limited assistance because Abdulla was not cited. Discussion (1). Abdulla: cessation of refugee status under the QD involves an individualised and not a generalised evaluation of the changed conditions in the country of origin; the ultimate question under the ceased circumstances clause is simply whether any fear for a Refugee Convention reason has ceased to exist

[47]I accept that it would be inconsistent with the purposes of refugee status, whether under the Refugee Convention or the QD, if protection could be too easily ceased while a person was still in need of international protection or it was not reasonably clear that the need for it had gone. That would hardly solve the problem of persecution and displacement which those instruments are intended to address. Equally, as it seems to me, there is no necessary reason why refugee status should be continued beyond the time when the refugee is subject to the persecution which entitled him to refugee status or any other persecution which would result in him being a refugee, or why he should be entitled to further protection. There should simply be a requirement for symmetry between the grant and cessation of refugee status.

[48]The drafters of the QD were no doubt aware of the risk that states which were obliged to grant refugee status under international law would seek to escape from their obligations too readily. Advocate General Mazak in Abdulla (at paragraph 45) went so far as to suggest that the ceased circumstances clause should be interpreted “in a cautious manner, fully respecting human dignity.” But the CJEU in Abdulla did not develop the concept of human dignity, beyond referring to the statement in Recital 10 to the QD that the QD “seeks to ensure full respect for human dignity”. However, there are other aspects of the QD which reflect the provisions of the Refugee Convention and which demonstrate a need to protect refugees. The QD does not refer to changes in circumstances being “durable” (the phrase used in Refugee Convention jurisprudence) but to their being “non-temporary”. We have not had any argument on whether this might be a stronger word but the CJEU went on (as it seems to me, provisionally, as this is not an issue that had to be argued on this appeal) to interpret it robustly in Abdulla: 73The change of circumstances will be of a “significant and non-temporary” nature, within the terms of article 11(2) of the Directive, when the factors which formed the basis of the refugee's fear of persecution may be regarded as having been permanently eradicated…

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

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

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

[52]The submissions on both sides have involved a textual approach to the reasoning of the CJEU in Abdulla and I cannot satisfactorily address the submissions without setting out the relevant paragraphs of the decision: 65 Article 11(1)(e) of the Directive, in the same way as article 1C(5) of the Geneva Convention, provides that a person ceases to be classified as a refugee when the circumstances as a result of which he was recognised as such have ceased to exist, that is to say, in other words, when he no longer qualifies for refugee status. 66 By stating that, because those circumstances “have ceased to exist”, the national “can no longer … continue to refuse to avail himself or herself of the protection of the country of nationality”, that article establishes, by its very wording, a causal connection between the change in circumstances and the impossibility for the person concerned to continue to refuse and thus to retain his refugee status, in that his original fear of persecution no longer appears to be well founded. 67 In so far as it provides that the national “can no longer … continue to refuse” to avail himself of the protection of his country of origin, article 11(1)(e) of the Directive implies that the “protection” in question is the same as that which has up to that point been lacking, namely protection against the acts of persecution envisaged by the Directive. 68 In that way, the circumstances which demonstrate the country of origin's inability or, conversely, its ability to ensure protection against acts of persecution constitute a crucial element in the assessment which leads to the granting of, or, as the case may be, by means of the opposite conclusion, to the cessation of refugee status. 69 Consequently, refugee status ceases to exist where the national concerned no longer appears to be exposed, in his country of origin, to circumstances which demonstrate that that country is unable to guarantee him protection against acts of persecution against his person for one of the five reasons listed in article 2(c) of the Directive. Such a cessation thus implies that the change in circumstances has remedied the reasons which led to the recognition of refugee status. 70 In order to arrive at the conclusion that the refugee's fear of being persecuted is no longer well founded, the competent authorities, by reference to article 7(2) of the Directive, must verify, having regard to the refugee's individual situation, that the actor or actors of protection of the third country in question have taken reasonable steps to prevent the persecution, that they therefore operate, inter alia, an effective legal system for the detection, prosecution and punishment of acts constituting persecution and that the national concerned will have access to such protection if he ceases to have refugee status. 71 That verification means that the competent authorities must assess, in particular, the conditions of operation of, on the one hand, the institutions, authorities and security forces and, on the other, all groups or bodies of the third country which may, by their action or inaction, be responsible for acts of persecution against the recipient of refugee status if he returns to that country. In accordance with article 4(3) of the Directive, relating to the assessment of facts and circumstances, those authorities may take into account, inter alia, the laws and regulations of the country of origin and the manner in which they are applied, and the extent to which basic human rights are guaranteed in that country. 72 Furthermore, article 11(2) of the Directive provides that the change of circumstances recorded by the competent authorities must be “of such a significant and non-temporary nature” that the refugee's fear of persecution can no longer be regarded as well founded. 73 The change of circumstances will be of a “significant and non-temporary” nature, within the terms of article 11(2) of the Directive, when the factors which formed the basis of the refugee's fear of persecution may be regarded as having been permanently eradicated. The assessment of the significant and non-temporary nature of the change of circumstances thus implies that there are no well-founded fears of being exposed to acts of persecution amounting to severe violations of basic human rights within the meaning of article 9(1) of the Directive. 74 It must be pointed out that the actor or actors of protection with respect to which the reality of a change of circumstances in the country of origin is to be assessed are, under article 7(1) of the Directive, either the state itself or the parties or organisations, including international organisations, controlling the state or a substantial part of the territory of the state. 75 As regards the latter point, it must be acknowledged that article 7(1) of the Directive does not preclude the protection from being guaranteed by international organisations, including protection ensured through the presence of a multinational force in the territory of the third country. 76 In view of all the foregoing considerations, the answer to the first question is that article 11(1)(e) of the Directive is to be interpreted as meaning that(i) refugee status ceases to exist when, having regard to a change of circumstances of a significant and non-temporary nature in the third country concerned, the circumstances which justified the person's fear of persecution for one of the reasons referred to in article 2(c) of the Directive, on the basis of which refugee status was granted, no longer exist and that person has no other reason to fear being “persecuted” within the meaning of article 2(c) of the Directive;

(ii) for the purposes of assessing a change of circumstances, the competent authorities of the member state must verify, having regard to the refugee's individual situation, that the actor or actors of protection referred to in article 7(1) of the Directive have taken reasonable steps to prevent the persecution, that they therefore operate, inter alia, an effective legal system for the detection, prosecution and punishment of acts constituting persecution, and that the national concerned will have access to such protection if he ceases to have refugee status;

(iii) the actors of protection referred to in article 7(1)(b) of the Directive may comprise international organisations controlling the state or a substantial part of the territory of the state, including by means of the presence of a multinational force in that territory.

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

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

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

[56]In other words, humanitarian standards are not the test for a cessation decision. It matters not whether the FTT had

Article 3 of the Convention

in mind or whether it simply took the view that a refugee should not be returned unless the country of origin now protected human rights in general. The FTT went much further than the QD or the Refugee Convention.

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

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

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

[60]I do not in any event accept that it is correct to read into the CJEU’s decision reasoning of the Advocate General which the CJEU did not itself adopt. The correct approach is surely to focus on what the CJEU held in their judgment. (2). A cessation decision does not involve the question whether Article 3 would be violated

[61]It must follow from the analysis of the CJEU in Abdulla that the recognising state does not have to investigate whether there would be an Article 3 violation if the refugee was returned to his country of origin. That would have to be considered, but as an independent matter. (3). No need for a reference to the CJEU for a preliminary ruling

[62]Mr Sills submitted, almost as an afterthought, that this Court should consider making a reference to the CJEU for clarification of its ruling under question 1 in Abdulla. Mr Waite opposes a reference. I do not consider that this is necessary and I would, therefore, decline to make a reference to the CJEU. (4). Whether the risk of deprivation on return would lead to a violation of

Article 3 of the Convention

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

[64]Mr Waite submits that the decision of this Court in FY (Somalia) v SSHD

[2017] EWCA Civ 1853

could be read as departing from Said and as accepting that it was sufficient for Article 3 purposes that a person returning to his country of origin might end up living in an IDP camp. Although the holding of the FTT in that case (paragraph 22), which this Court held had not erred in law (paragraph 23), could be read as so holding, Said was not cited and therefore in my judgment to the extent that there is any conflict between the decision of this Court in Said and that in FY Somalia, the decision of this Court in Said should be followed. (5). Reasoning of the Tribunals was erroneous in law and in the case of the FTT the fact-finding proceedings was defective in law because it was incomplete

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

[66]As to the Upper Tribunal, I accept Mr Waite’s contention that the Upper Tribunal was wrong in law in its approach, which was to look to the systems of governance in Somalia rather than the protection actually available to the respondent. (6). Appropriate disposal of appeal: allowing of the appeal and remittal to the FTT

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

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

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

LORD JUSTICE PETER JACKSON :

[70]I agree.

Cited in 12 later judgments

and 3 more of the most senior