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Secretary of State for the Home Department v MSM (Somalia) and UNHCR (Intervener) [2016] EWCA Civ 715

DATE: 12 Jul 2016

This case raised an important issue in relation to modification of conduct in refugee cases where the convention ground is imputed political opinion.  The Respondent was a journalist from Somalia who, on the findings of the Upper Tribunal, faces persecution in the event of return on the basis of actual political opinion and imputed political opinion

The Court of Appeal dismissed the Secretary of State’s appeal because the Upper Tribunal had made a finding that MSM’s pursuit of a career in journalism involving the expression of political opinion is “at least partially driven by political conviction relating to conditions prevailing in Somalia”. In the circumstances and contrary to the Secretary of State’s argument before the Court, the case was not a case of imputed political opinion

However, the Court of Appeal agreed exceptionally to consider on an obiter basis, the wider question of whether it would be reasonable for MSM to avoid risk of attracting an imputed political opinion by not engaging in his chosen career of journalism but to return to his earlier career of teaching.

Beatson LJ (with whom Tomlinson LJ and Moore-Bick LJ agreed) gave the leading judgment and held that the text of the Directive and Convention contemplates two questions. The 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 stated that there is a single test for refugee status and, save for Article 8 of the Directive in respect of internal protection and internal relocation, there is no separate test for those who do not in fact have the protected characteristic but to whom that characteristic is imputed by the actor of persecution.

The Court rejected the Secretary of State’s argument that in cases concerning modification of conduct and imputed political opinion there should be a separate test, akin to the internal relocation principle. Beatson LJ stated that the absence of any provision in the Convention or the Directive dealing with the possibility of avoiding action, together with the express exemption in Article 8(1) from the basic approach in cases where there is no real risk of persecution in part of the applicant’s country of origin, points against the implication for which the Secretary of State contended.

The Court did not accept the Secretary of State’s reliance on Lord Dyson’ judgment at paragraphs [113] to [115] of HJ (Iran) in relation to whether there is scope a distinction between “core” and “marginal” interferences; so that (on SSHD’s argument) in cases of imputed political opinion it is appropriate to look at the reasonableness of avoiding action that is possible, and to consider whether that avoiding action can be taken without engaging a fundamental right protected by the Refugee Convention. The Secretary of State’s position was held inter alia to be inconsistent with what was subsequently stated by Lord Dyson in RT (Zimbabwe).

The Court agreed with the decision of the Federal Court of Australia in Minister for Immigration and Border Protection v Szsca [2013] FCAFC 115, which concerned similar facts and in which in which the majority of the Federal Court stated that the Tribunal in that case had erred in looking at what the individual “could do rather than what he would do if returned” to his country of origin.

Christopher Jacobs and Guy Goodwin-Gill appeared for MSM.