Case No: C5/2013/1756
Neutral Citation Number: [2016] EWCA Civ 81

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC) 
Upper Tribunal Judges Storey and Pitt 
IA/03532/2007 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/02/2016

Before :

LORD JUSTICE VOS
and
LORD JUSTICE SIMON

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Between:

	RY (Sri Lanka) 	Appellant	
	
and
		
	Secretary of State for the Home Department	Respondent	

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Mr S Chelvan (instructed by Patricks Solicitors) for the Appellant
Ms C Rowlands (instructed by Government Legal Department) for the Respondent

Hearing date: 26 January 2016

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Judgment
Lord Justice Simon: 
Introduction 
1.	This is an appeal from the determination of the Upper Tribunal (Immigration and Asylum Chamber), (Upper Tribunal Judges Storey and Pitt) promulgated on 21 March 2013 in which the Appellant’s appeal against a decision by the Respondent to make a deportation order against him was dismissed.   
2.	The appeal raises the issue of how refugee status should be taken into account when considering the article 3 risks which may arise on deportation.
The facts
3.	The Appellant, who was born in 1975, is a citizen of Sri Lanka. He entered the United Kingdom illegally on 27 December 1997 and claimed asylum the next day. His application was refused on 20 May 1999 and he appealed against that decision. Although his appeal was successful in the result, the Adjudicator made a number of adverse findings about his credibility in a determination made on 13 October 1999. The Adjudicator found that, although he had scarring on his body, he had not been tortured and had not left Sri Lanka irregularly. He found him to be a dishonest witness who was a scarred Tamil and, on that basis, was entitled to protection. The Respondent did not appeal the decision and, on 15 February 2000, he was granted refugee status and indefinite leave to remain.
4.	In February 2002 he married his wife in India, and she was then granted leave to enter the UK as the spouse of a settled person. In January 2003 the couple had a son. 
5.	In October 2003 the Appellant was involved in a road traffic accident which resulted in the death of a young woman. She was 30 weeks pregnant at the time and the child could not be saved. The Appellant was arrested and charged with Causing Death by Dangerous Driving. He pleaded not guilty and was bailed to attend his trial. In January 2004 he absconded to Germany and remained at large for over a year. He did not tell his wife where he had gone and she was left to care for their young son without him.
6.	In June 2005 he returned. He pleaded guilty to an offence under the Bail Act 1976, and was sentenced to a term of 8 months imprisonment. In July 2005 he pleaded guilty to Causing Death by Dangerous Driving and Conspiracy to Pervert the Course of Justice. He was sentenced to a term of 2 years and 3 months for the former offence and a consecutive term of 6 months for the latter offence. The total term of imprisonment of 2 years and 9 months was ordered to run consecutively to the sentence for the Bail Act offence. He was also banned from driving for 4 years and required to take an extended driving test.
7.	In March 2007 he was released from prison and a subsequent one month period of immigration detention.
8.	On 2 March 2007 the Respondent issued a decision to make a deportation order under s.3(5)(a) of the Immigration Act 1971 Act and, on 12 July 2007, certified the case under s.72(2) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) on the basis that the Appellant had been ‘convicted of a particularly serious crime’ and constituted ‘a danger to the community of the United Kingdom.’ It was said that the consequence of this decision was that his refugee status no longer prevented his return to Sri Lanka in the light of article 33(2) of the Refugee Convention. The letter went on to explain that he was excluded from the grant of Humanitarian Protection under the Immigration Rules, and that the Respondent considered that the decision to deport him would not breach either his rights under article 3 of the European Convention on Human Rights (‘the ECHR’) or his rights and those of his family under article 8 of the ECHR.
9.	The Appellant appealed against the s.72 certification and against his deportation, and the appeal was dismissed by the Asylum and Immigration Tribunal (‘AIT’) in August 2007. 
10.	In October 2007, in breach of the terms of his licence and the driving ban that had been imposed in July 2005, he drove again and overturned his car. In December 2007 he was convicted of Driving while Disqualified and sentenced to a term of 12 weeks imprisonment.
11.	The Appellant successfully appealed against the AIT’s August 2007 decision on the basis that it disclosed a material error of law and the appeal was reconsidered by a panel which dismissed the appeal in a determination dated April 2008. The Appellant appealed that decision to the Court of Appeal and, after a single Lord Justice granted permission to appeal on the papers in September 2008, the parties agreed the terms of a Consent Order in March 2009. This recorded that the appeal against the April 2008 determination was allowed and the case was to be remitted to the AIT to be reconsidered in the light of the imminent judgment of the Court of Appeal in the linked cases of EN (Serbia) and KA (South Africa). Judgment in these cases was given on 26 June 2009 and was reported as EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630, to which I refer later in this judgment. 
12.	In the meantime, in March 2008, the Appellant’s wife and child were granted British citizenship, and a second child was born in this country in December 2009.
The applicable law
13.	It is convenient to start with some of the articles of the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the 1967 Protocol (the ‘Refugee Convention’). 
14.	Article 1 of the Refugee Convention defines the term ‘refugee’.
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 ...
15.	Article 32 is headed, ‘Expulsion’.
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 … 
16.	Article 33 is headed, ‘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.
17.	The Refugee Convention has been incorporated into domestic law for some purposes (for example, in order to define a claim for asylum) and has superior status to the Immigration Rules. However it does not have the force of statute nor a status superior to statutory instruments, see EN (Serbia) at [58]-[59].  
18.	The relevant domestic law derives from a number of sources and it is convenient to start with Section 72 of the 2002 Act, as amended by the United Kingdom Borders Act 2007. 
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 
19.	Council Directive 2004/83/EC (‘the Qualification Directive’) was implemented in this country by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (‘the Qualification Regulations’). The purpose of the Qualification Directive was to lay down minimum standards for the qualification of third country nationals or stateless persons as refugees or as persons who otherwise need international protection, the content of the protection which should be afforded (see article 1) and the provision of a European refugee status independent of the refugee status provided by the Refugee Convention. 
20.	Article 2 of the Qualification Directive contains a number of definitions, including. 
…
(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. 
21.	Article 11.1 (on which the Appellant relies) lists, under the heading ‘cessation’, the circumstances in which refugee status may be lost. These include, if he or she:
…
(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.
22.	Article 11.2 provides:
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. 
23.	Article 14 makes further provision where there has been ‘revocation of, ending of or refusal to renew refugee status.’ In summary, Member States may revoke refugee status if he or she has ceased to be a refugee in accordance with article 11 (article 14.1), or by article 14.4 where: 
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.
24.	Articles 11.1 and 11.2 of the Qualification Directive are matched by the cessation provisions in §339A of the Immigration Rules as amended. Thus, the Refugee Convention ‘ceases to apply’ (‘cessation’) if the Secretary of State is satisfied that particular circumstances have arisen. These circumstances are set out in article 11.1(a) to (f) of the Qualification Directive and §339A(i) to (vi) of the Immigration Rules. Thus §339A(v) is in similar terms to article 11.1(e), and there is a similar provision to article 11.2. §339BA provides for the procedure which applies when then the Respondent is considering revoking refugee status in accordance with the Rule.
25.	It is clear from the above that the Secretary of State has power to revoke refugee status in particular circumstances, and it is also clear that she has not done so in the present case. The Determination recorded at §33.
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
26.	For the Appellant, Mr Chelvan advanced three grounds of appeal; and it is convenient at this stage to focus on his primary ground. His submission was that the Appellant had been granted refugee status in February 2000 and this had never been revoked.  Following the 2008 Consent Order the Respondent must have reassessed whether the cessation provisions applied [Art 1C of the Refugee Convention, article 11.1 of the Directive and §339A of the Rules], and must have concluded that he was still entitled to refugee status. This had been acknowledged and recorded in [38] of the Upper Tribunal’s Determination.
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.
27.	Mr Chelvan submitted that Article 33(2) of the Refugee Convention and s.72(1) of the 2002 Act had no effect as a matter of English law unless the Appellant’s refugee status was revoked, that for as long as he had the status of a refugee he was presumed to have a well-founded fear of persecution if he were returned and that this was determinative of (or at least highly material to) the consideration of his rights under article 3. He relied on a number of cases in support of the proposition that refugee status will normally be determinative of article 3 rights, see for example Secretary of State for the Home Department v. Kacaj [2002] Imm AR 213 at [10].
28.	For the Secretary of State, Ms Rowlands submitted, in summary, that there was a logical fallacy at the heart of the Appellant’s primary argument: the fact that the Appellant retained refugee status did not have either the legal or factual consequence that he would be at risk if he were deported. That was clear from the terms of article 33.2 which envisage the refoulement of a refugee if he has been convicted of a particularly serious crime. In such circumstances, the refugee’s position is protected by the invocation of his rights under article 3, which prevent his refoulement where he would be at risk.
The Upper Tribunal’s decision on the primary ground 
29.	The Upper Tribunal embarked on its consideration of the issue at [31].
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.
30.	That statement of the law is not controversial. 
31.	Although the Appellant’s argument was advanced differently before the Upper Tribunal, the substance of the primary argument was addressed in the Determination. 
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.
32.	At §37 the Upper Tribunal rejected the Appellant’s submission and concluded that he could not succeed in his article 3 claim merely because he was still a recognised refugee.  It found that there was nothing in the case of EN (Serbia) v. Secretary of State for the Home Department [2009] EWCA Civ 630 which justified the Appellant’s submission and that the Upper Tribunal had reached the contrary view in Dang (Refugee - query revocation - Article 3) [2013] UKUT 00043 (IAC). In the view of the Upper Tribunal the Article 3 assessment had to be carried out prospectively at the date of the hearing. 
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
33.	As already noted, at the heart of Mr Chelvan’s challenge to the Determination was the submission that, having recognised the Appellant as a refugee, it was not open to the Respondent to deport him without taking steps to ‘cessate’ his refugee status. 
34.	I do not accept that submission. First, the terms of article 33.2 of the Refugee Convention make clear that refugee status will not (of itself) prevent refoulement in the specified circumstances. 
35.	Secondly, the reasoning of the Court in EN (Serbia) is inconsistent with the Appellant’s contention. At [89] Stanley Burnton LJ considered that the relevant questions were:
(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?
36.	At [90] of his judgment he continued:
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.
37.	It is clear from these passages that the State ‘may’ revoke refugee status on the grounds that he or she constitutes a danger to the community having been convicted of particularly serious crime, but it is not obliged to do so (see article 14.4(b) of the Qualification Directive). It appears from EN (Serbia) at [92] that the Respondent does not generally exercise the power to revoke a grant of asylum under Rule 339A(v) (corresponding to article 33(2) of the Refugee Convention and article 11.1(e) of the Directive).
38.	It was for this reason that Stanley Burnton LJ expressed the alternative approach available to the Secretary of State.
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.  
39.	In the present case the Respondent adopted the alternative approach and the Upper Tribunal concluded that the Appellant’s convictions were particularly serious and that he was a danger to the community.
40.	Mr Chelvan developed his argument by submitting that the consequence of not revoking refugee status was that it must be presumed that the refugee’s removal would be in breach of article 3. This is not self-evident. As the Upper Tribunal noted, a person may be granted refugee status many years before a decision is made to refoule on the ground of serious criminality; and it is difficult to see why there should be a continuing presumption of indefinite duration. In Dang (Refugee - query revocation - article 3) [2013] UKUT 00043 the Upper Tribunal emphatically rejected the argument. 
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.
41.	The decisions to which the Upper Tribunal referred to were Saadi v. Italy [2008] ECHR 179 (Case No: 377201/06) and Sufi & Elmi v. United Kingdom [2011] ECHR 1045. Mr Chelvan was critical of the Upper Tribunal’s reliance on these cases, not least because in Saadi the applicant did not have refugee status. However, it is clear that the Upper Tribunal was citing these cases in support of the proposition that a Tribunal or Court considering the matter looks at the article 3 risk prospectively at the date of the proceedings and not by reference to the historical position, although the historical position may be relevant, see Dang at [42].
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.
42.	In the present case, the Upper Tribunal expressed its approach as follows:
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. 
43.	In my view that is a correct statement of the law and there is no proper basis for the assertion that past refugee status (of itself) raises a presumption of article 3 ill-treatment on return. 
44.	It follows that I reject the Appellant’s primary grounds of appeal. 
The alternative grounds of appeal
45.	There were two further arguments which were advanced by Mr Chelvan on the Appellant’s behalf. 
46.	First, he challenged the terms of the s.72 certificate that the Appellant was a ‘real risk of danger to the community’. He submitted that, although he had been convicted of an offence under s.2 of the Road Traffic Act 1968, because he was required to take an extended driving test by the provisions of that Act and did so in June 2011, he was to be treated as rehabilitated, or at least no longer a danger to the community having done so; and that the Upper Tribunal should have so found. 
47.	Secondly, he submitted that the Upper Tribunal’s assessment of the interference with his and his family’s article 8 rights was flawed. 
48.	In granting leave on the primary ground Elias LJ observed that these two grounds were ‘extremely thin’. 
49.	So far as the first point is concerned, the obligation to take an extended driving test arises under s.36 of the Road Traffic Offenders Act 1988, and I do not accept that the passing of the test had the consequence that the Appellant was no longer a danger to the public. If that were so someone who committed an offence under s.2 of the Road Traffic Act 1968 could never be deported since the extended driving test is mandatory for such offences, nor could someone who was a competent driver when sober but habitually drove when drunk. The Upper Tribunal went through a very much more nuanced assessment of risk and came to the conclusion that he had not rebutted the s.72 presumption. 
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. 
50.	In my view those conclusions were, at the very least, conclusions that the Upper Tribunal was entitled to reach.
51.	Mr Chelvan did not pursue the article 8 point with great vigour and, in my judgment he was right not to do so. The Upper Tribunal very carefully considered the issues which arose at [45]-[53], and concluded: 
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).
52.	Again, in my view, there are no proper grounds for challenging either the Upper Tribunal’s reasons or its conclusion.
53.	It follows that in my judgment the appeal must be dismissed.
Lord Justice Vos:
54.	I agree.