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Reported Case

Secretary of State of the Home Department v MSM (Somalia) and the UNHCR (acting as the Intervener) [2016] EWCA Civ 715 Lord Justices’ Panel: Moore-Bick LJ, Beatson LJ and Tomlinson LJ (12 July 2016)

Date: 12/07/2016
Duncan Lewis, Reported Case Solicitors, Secretary of State of the Home Department v MSM (Somalia) and the UNHCR (acting as the Intervener) [2016] EWCA Civ 715 Lord Justices’ Panel: Moore-Bick LJ, Beatson LJ and Tomlinson LJ


Deok Joo Rhee Representing the Appellant (Secretary of State for the Home Department)
Christopher Jacobs and Guy Goodwin Gill Representing the Respondent (MSM)
Marie Demitrou QC and Tom Pascoe Representing the Intervener (UNHCR)

Background of the case

MSM is a national of Somalia and he left his country of Origin to seek international protection in the UK. He arrived in the UK on 04 October 2013 and he claimed asylum on the same day. MSM fears to return back to Somalia because he is a journalist and Al Shabaab have threatened him with his life. As a professional journalist MSM worked for Simba Media Centre prior to fleeing the UK. Before becoming a journalist he had worked as a teacher in Mathematics and teaching Somali. MSM received threatening text messages from Al Shabaab demanding that he quit journalism and that he continued to received these messages even though he changed his mobile number on two occasions. These threats escalated to death threats from Al Shabaab and this forced MSM to leave Somalia to come to the UK. MSM claims to have a well founded fear of persecution if he is returned to Somalia for reasons of political opinion and in particular because of his profession as a journalist. Whilst the UK MSM continued to undertake voluntary journalism in local based radio stations.

The Secretary of State for the Home Department refused his asylum claim and held that his claim that he is wanted by Al Shabaab as internally inconsistent. The Secretary of State also mentioned that MSM could change his profession so as to avoid being threatened by Al Shabaab. The Secretary of State did not believe that Al Shabaab would have taken action against MSM if they were indeed interested in him. MSM filed an appeal to the First Tier Tribunal and the appeal was dismissed on 18 March 2015. Permission to Appeal to the Upper Tribunal was granted. During the course of MSM’s Upper Tribunal proceedings a request was made to the UNHCR to intervene in this case. MSM’s Upper Tribunal hearing was heard under a panel of two Judge’s, President McCloskey and Upper Tribunal Judge Blake. On 03 July 2015 the President granted MSM his appeal. The UT materially concluded as follows: [1] The enforced return of the Appellant, a journalist, from the United Kingdom to his country of origin, Somalia, would expose him to a real risk of persecution on the ground of actual or imputed political opinion and/or a breach of his rights under Articles 2 and 3 ECHR. [2] It is probable that, in the event of returning to Somalia, the Appellant will seek and find employment in the media sector. [3] The Appellant is not to be denied refugee status on the ground that it would be open to him to seek to engage in employment other than in the media sector. The Secretary of State then sought permission to appeal to the Court of Appeal and permission was granted on 11 September 2015 by the President.

The President of the Upper Tribunal granted the Secretary of State’s application for permission to appeal to the Court of Appeal on the basis that the Secretary of State raises an important point of legal principle as to whether the principle in HJ (Iran) applies to imputed political opinion. The Secretary of State accepts that an individual, who was required to modify his behaviour so as to suppress political opinions to avoid the effects of persecution, would be entitled to protection under Article 10 of the Qualification Directive. However, SSHD does not accept that the principle can be extended to imputed political opinion because, she contends, the harmful action feared is not at the core of the protected right.

At the request of MSM’s instructing solicitors we invited the UNHCR to intervene in this matter at the Court of Appeal. The hearing was part heard by the Court of Appeal on 02 February 2016 however it had to be adjourned after Counsel for the Appellant was taken ill on the second day. The hearing was resumed on 15 June 2016. The approved Judgement was handed down on 12 July 2016 by the Court of Appeal. Beatson LJ accepted that Ms Rhee’s criticism that the way the UT dealt with political opinions as a whole, whether actual or imputed appeared at times to elide the two categories. The language of espousal and/or expression of political opinions is perfectly understandable in relation to actual political opinions. Beatson LJ focused on the Secretary of State’s second ground “that the Tribunal failed to make a finding as to risk based on actual political opinion.” Beatson LJ rejected this submission. The Secretary of State did not challenge the Upper Tribunal’s finding of fact in paragraph 18 of the Determination. Miss Rhee believed that the Secretary of State’s appeal should succeed on this ground because the Upper Tribunal did not say that MSM’s political convictions were a determinative factor in his choice of profession. Beatson LJ stated that Miss Rhee’s submission minimised the significance of the Upper Tribunal’s funding of fact in paragraph 18 in particular that MSM’s career in journalism is “at least partly driven by political conviction.”

In Beatson LJ’s judgement this suffices to dispose of this appeal. Miss Rhee pressed the Court to consider the Upper Tribunal’s treatment of imputed political opinion which as stated she considered was the central issue in this case. Submissions of all three counsels show that this is not a straightforward question. Beatson LJ explained why the Court should tread warily in these circumstances and his reasons for exceptionally making what can only be obiter dicta in explaining why he considers the Submissions of the Respondent and UNHCR as powerful. Starting point is to go back to the Geneva Convention and the Qualification Directive. In short the text of the Directive and Convention contemplates two questions. First is whether the applicant for refugee status faces a well-founded fear of persecution. The second, is the reason for that persecution. Beatson LJ agrees with Miss Demitrou and Mr Jacobs that if the answer to the first question is YES and the reason for persecution is within Articles 2(c) and 10, the language of the Directive leaves little room for the examination of the steps the applicant might take to avoid persecution.

Beatson LJ acknowledged that there is some support for regarding the language of the Directive (and of the Convention) as requiring an imputed political opinion to be treated as the political opinion of the applicant. In the case of Gomez (Non State Actors: Acero-Garces Disapproved) (Columbia) [2000] UKIAT 00007 the Immigration Appeal Tribunal stated that political opinion grounds needs to be construed broadly and referred to the decision of the US Federal District Court in Sanga v INS 103 F 3d 1482 at 1487 (9th Circuit 1997). The 9th circuit stated that while establishing an imputed political opinion the focus of inquiry turns away from the views of the victims to the views of the persecutor, what is relevant are the views the persecutor attributes to the victims. Beatson LJ acknowledged that there is similar recognition in decisions of this court that nothing in the Directive authorises a refusal of refugee status on the basis that the applicant could but would not in fact take reasonable steps to avoid persecution. IN the case of Ahmed v SSHD [2000] INLR 1 concerned actual religious believe but is considered in this instant Judgement to be of assistance. Simon Brown LJ stated that the earlier decision in Danian v SSHD [1999] INLR decided that in all asylum cases the ultimate single question is whether there is a serious risk that on return the applicant would be persecuted for a Convention reason. Simon Broan LJ stated that if there is, then the applicant is entitled to asylum and:

“It matters not whether the risk arises from his own conduct in this country, however unreasonable. It does not even matter whether he has cynically sought to enhance his prospects of asylum by creating the very risk on which he then relies- cases sometimes characterised as involving bad faith.”
Simon Brown LJ stated that if when returned the asylum seeker would in fact act in the way he says he would and thereby suffer persecution, “however unreasonable he might be though for refusing to accept the necessary restraint on his liberties, in my judgment he would be entitled to asylum.” Simon Brown LJ’s approach was endorsed by Lord Hope in HJ (Iran) where his Lordship stated that the “fact an applicant for asylum could take action to avoid persecution does not disentitle him from asylum if in fact he will not act in such a way as to avoid it. That is so even if to fail or to refuse to avoid it would be unreasonable.” As to the submission that the requirement to take reasonable steps to avoid persecution is part of the test for determining whether a person will face persecution within the meaning of Article 9, that was expressly rejected by Lord Dyson in HJ (Iran). His Lordship stated that the phrase ‘being persecuted’ does not refer to what the asylum seeker does in order to avoid such persecution.

Tomlinson LJ and Moor-Bick LJ agreed with Beatson’s findings.

The Secretary of State’s appeal was dismissed. Permission to appeal has been refused by the Court of Appeal, we are still awaiting confirmation whether the Secretary of State will appeal directly to the Supreme Court.


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