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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> RY (Sri Lanka) v Secretary of State for the Home Department [2016] EWCA Civ 81 (12 February 2016) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/81.html Cite as: [2016] EWCA Civ 81 |
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ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
Upper Tribunal Judges Storey and Pitt
IA/03532/2007
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE SIMON
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RY (Sri Lanka) |
Appellant |
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and |
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Secretary of State for the Home Department |
Respondent |
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Ms C Rowlands (instructed by Government Legal Department) for the Respondent
Hearing date: 26 January 2016
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Crown Copyright ©
Lord Justice Simon:
Introduction
The facts
The applicable law
A. For the purposes of the present Convention, the term 'refugee' shall apply to any person who:
(2) 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; 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.
C: 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 recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality ...
1. A Contracting State shall not expel a refugee lawfully on their territory save on the grounds of national security or public order
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law
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.
72. Serious criminal
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
(2) 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.
(6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.
(11) For the purposes of this section
(a) 'the Refugee Convention' means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol
(c) 'refugee' means third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country
(d) 'refugee status' means the recognition by a Member State of a third country national or a stateless person as a refugee.
(e) can no longer, because of the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality.
In considering points (e) and (f) of paragraph 1, Member States shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be well founded.
he or she, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that Member State.
There is no dispute that this appellant is still recognised as a refugee by the respondent. [The Home Office Presenting Officer] confirmed that the respondent had not sought to revoke or cessate his refugee status.
The primary argument on the appeal
There is no dispute that this appellant is still recognised as a refugee by the respondent. [The respondent's representative] confirmed that the respondent had not sought to revoke or cessate his refugee status.
The Upper Tribunal's decision on the primary ground
The ECHR does not contain an equivalent provision to Article 33(2) of the Refugee Convention. It has long been understood that the nature of the prohibition imposed on states by article 3 is absolute, irrespective of the conduct of the individual facing removal and the European Court of Human Rights has consistently held that states cannot expel individuals who might be subjected to torture, inhuman or degrading treatment or punishment in the recipient state.
34. It was argued for the appellant that if the respondent accepted that he was a refugee, the inevitable conclusion was that it was also accepted that he faced a real risk of persecution on return to Sri Lanka. This had to amount also to a real risk of torture or inhuman or degrading treatment. Removal would therefore constitute a breach of his rights under Article 3 of the ECHR and he could not be removed notwithstanding that the came within the refoulement provision of Article 33 (2) of the Refugee Convention. It had been open to the respondent to revoke or cessate the appellant's refugee status since July 2005. She had not done so. It was for the respondent to show that the risk of persecution and concomitant risk of mistreatment under Article 3 no longer existed and not for the appellant to have to prove his case again.
42. We consider that in the appellant's case that are good reasons for considering that he would not be at such real risk any more ... We have an appellant before us who lacked any credibility in his asylum claim. He did not suffer past persecution. He won his appeal and was granted refugee status merely because of the presence of scars, which it was considered would at that point in time put him at risk on return. The appellant has put forward nothing of any substance which might lead us to look again at the findings of the Adjudicator Even placing 'particular weight' on the appellant having been recognised as a refugee in the past and not having had his refugee status revoked or subject to cessation, the historical position does not assist him now. His asylum claim was found not credible. The case law has evolved in line with the evidence on risk on return to Sri Lanka where an appellant has scarring The appellant is a Tamil from the north of Sri Lanka who will be returning as a deportee with no Sri Lankan ID, having made an asylum claim in the UK after being in London for a period of nearly 15 years. The reason for his return is his criminal behaviour. That is the truthful answer he can be expected to give if he is asked about the reasons for his return at any time during the deportation process or after arrival in Sri Lanka.
Consideration of the primary ground of appeal
(a) Should his refugee status be revoked under article 1.C(5) of the [Refugee] Convention and the materially identically worded article 11.1(c) of the [Qualification Directive]?
(b) If so, subject to (d) is his deportation in the public interest?
(c) If his refugee status has not been revoked, are the requirements of article 33.2 of the [Refugee] Convention and article 14.4 of the [Qualification] Directive satisfied?
(d) if the answers to (a) and (b), or those to (b) and (c) are affirmative, will his deportation infringe his rights under the European Convention on Human Rights, and in particular articles 2, 3 and 8?
Very different issues have to be considered under (a) and (c). Revocation is primarily concerned with contemporary conditions in the refugee's country of nationality. Refoulement under article 33(2) of the Convention (and Article 14.4 of the Directive) depends on the personal conduct and characteristics of the refugee. A decision that a refugee can lawfully be refouled under article 33(2) will be largely ineffective if he can show that his rights under the Human Rights Convention will be infringed by his deportation.
99. The Secretary of State should decide whether to revoke his refugee status under Immigration rule 339A(v). If he does, he will have to comply with rule 339BA, and there may be an appeal against her decision. If he does not, the tribunal will have to decide where EN's convictions were particularly serious crimes and whether he is a danger to the community.
4. [Counsel for Dang] did not refer us to any authority for the proposition that, for as long as an individual has refugee status, there is a presumption that his or her removal would be a breach of article 3. We reject this proposition, which we consider is simply wrong. The extracts we quote below from decided cases of the European Court of Human Rights (to which we were not referred) settle the issue so clearly that no further discussion is required on our part.
However, where an individual was recognised [as] a refugee at some point in the past, the past may be relevant in shedding light on the current situation and the prospective article 3 risk but it remains the case that the question whether there is a risk of article 3 ill-treatment must be answered at the date of the proceedings before the court and is forward looking.
41. We accept that in addition to past recognition of a person as a refugee, the fact that a State has not taken steps to revoke or apply cessation provisions to that person's refugee status is also a relevant factor when considering whether there is a violation of article 3 ECHR, but it can only be relevant to deciding whether there are good reasons for considering that there would be a real risk of persecution or ill treatment any more.
The alternative grounds of appeal
28. It remained our view that the appellant's offending behaviour and related conduct, in particular the repeat incident of poor driving in October 2007, indicated that he was someone who continued to pose a real danger to the community of the UK. It was our view that a period of considerably longer period of time than 5½ years would be required in order to show otherwise.
29. It was also our view that the same reasons showed that the appellant could not rebut the presumption in s.72(2) that he has committed a particularly serious crime where his sentence for the first offence was well over two years.
30. We find that the appellant has committed a particularly serious crime and constitutes a danger to the community of the UK. The respondent was entitled to certify the appellant's case under s.72 of the 2002 Act, Following Article 33(2) of the Refugee Convention, it is open to the respondent to refoule the appellant to Sri Lanka even though he is a refugee.
52. We are satisfied that this is a case where the public interest does outweigh the rights of the appellant and his family members to respect for their family life. We accept that there must be very serious reasons for deporting an appellant who has lived in this country lawfully since 1997 and whose family have always been here lawfully and he has a strong family life with them and where there are young children whose best interests in his remaining in the UK are a primary consideration. However, the appellant's offences were very serious, leading to the death of an innocent woman and her unborn child. His reaction when arrested and charged with that offence was to deny it, lie, provide false evidence and then abscond to Germany, abandoning his wife and baby. The failure to understand the seriousness of what he had done and disregard for the law shown by the second offence, the negligent way in which he drove on that occasion, and its following so soon after his release from imprisonment and even after he had been served with notice of the respondent's intention to deport him can only but evoke public revulsion. The circumstances of the further driving offence indicate that it was a matter of luck that that no one else was injured or worse.
53. We accept that deportation will bring to an end at least for the foreseeable future the appellant's family life with his wife and children, certainly in the form in which they currently enjoy it. It is the appellant's own behaviour which has put his family in this position. His offending resulted in tragedy for the victim of the road traffic accident and her family. It has led to a tragic situation for his wife and children. The seriousness of his offences is such that the public interest outweighs the interference with his and his family's right to respect for their private and family life. As in Ad Lee v SSHD [2011] EWCA Civ 348, the consequence of the appellant's criminal offending is to break up his family life. We find that there are very serious reasons which justify his deportation making it necessary and proportionate to legitimate purpose within article 8(2).
Lord Justice Vos: