Factual and Procedural Background
The Appellant is a national of Country A, born 5 October 1994. He arrived in the UK on 19 October 2010 as an unaccompanied minor and claimed asylum on 4 November 2010. In his account he said that, as a child, he and his family were affected by an attack by an armed group (Group A), that he was detained and forced to carry ammunition, that several family members died, and that his mother later died. He travelled to the UK in October 2010 using a forged passport.
Initial decision-making: the Respondent initially refused asylum on 25 February 2011 but granted discretionary leave until 4 May 2012. After reconsideration, the Respondent granted refugee status on 14 May 2012 on the basis that the Appellant, as an unaccompanied child with his profile, fell within a particular social group (described as "street children") and thus faced a real risk of ill‑treatment on return to Country A.
Subsequent events: the Appellant entered a long-term relationship and had children, worked for Company B, and in 2018 was convicted of inflicting grievous bodily harm; his sentence was reduced on appeal to 15 months' imprisonment. The Respondent notified an intention to cease (revoke) refugee status in October 2018 and revoked refugee status on 29 January 2019 pursuant to paragraph 339A(v) of the Immigration Rules. The Respondent also refused the Appellant's Article 8 representations.
Tribunal history: the Appellant appealed to the First‑Tier Tribunal (FTT), which allowed the appeal on 8 July 2022. The Respondent obtained permission to appeal to the Upper Tribunal (UT). The UT set aside the FTT decision and, after re-determination, dismissed the Appellant's appeal in a decision promulgated on 24 October 2023. This Court of Appeal hearing concerned (i) whether the UT erred in law by placing the burden of proof for a new claimed basis for protection ("Reason 2") on the Appellant rather than the Respondent and (ii) whether the UT erred in finding a relevant durable change in Country A.
Legal Issues Presented
- Where a person previously granted refugee status for one reason (Reason 1) which no longer applies, and the person relies upon a different reason (Reason 2) to resist cessation, who bears the burden of proof with respect to Reason 2?
- Whether the Upper Tribunal erred in law in finding that the Respondent had shown a relevant durable change in Country A (in particular by reference to the 2018 election) such that cessation was lawful.
Arguments of the Parties
Appellant's Arguments
- The Respondent bears the burden of proof throughout the cessation process; therefore the Respondent must prove Reason 2 if the Appellant relies upon it.
- The UT wrongly placed the burden of proof on the Appellant (particularly at UT paragraphs cited as [30] and [32]).
- The 2018 election and the UT's finding of durable change were irrelevant to the Appellant's claim that he falls within an existing risk category (those presumed to have connections with Country B / Group A).
Respondent's Arguments
- Once Reason 1 is shown to have ceased, the burden of proving any other basis for protection (Reason 2) lies on the person claiming protection (the Appellant).
- The UT's decision did not turn on allocation of the burden of proof and, in any event, the Appellant had not established Reason 2 on the evidence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Hoxha) v Special Adjudicator [2005] UKHL 19, [2005] 1 WLR 1063 |
Strict/restrictive approach to cessation clauses; Article 1C(5) invoked by State. |
Used to show SSHD must demonstrate cessation in single‑ground cases; did not directly address the present Reason 2 question. |
| Minister for Immigration and Multicultural and Indigenous Affairs v Quah [2006] HCA 53 (2007) Int J Refugee Law 293 |
Practical/evidential burden on asylum State authorities and need for rigorous satisfaction before stripping protection. |
Noted for principle that cessation decisions require rigorous satisfaction; concerned Reason 1 not Reason 2. |
| Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Abdulla v Bundesrepublik Deutschland [2010] ECR I-1493 |
Standard of proof for assessing other circumstances when original grounds have ceased. |
Court noted this concerns the standard (probability) rather than burden; Court of Appeal relied on CJEU recognition that assessment is analogous to initial examination. |
| Secretary of State for the Home Department v MM (Zimbabwe) [2017] EWCA Civ 797, [2017] 4 WLR 132 |
Onus on SSHD to show relevant, durable change in circumstances for Article 1C(5); circumstances may combine general country conditions and individual characteristics. |
Reinforced that burden lies on SSHD for cessation of Reason 1; adverse inferences may follow from claimant's failure to produce evidence relevant to risk. |
| MA (Somalia) v Secretary of State for the Home Department [2018] EWCA Civ 994, [2019] 1 WLR 241 |
Cessation as the "mirror image" of grant; verify whether grounds for recognition continue to exist; symmetry between grant and cessation. |
Adopted mirror image approach; supports SSHD burden for cessation of Reason 1 and individualised assessment; noted relevance to but not determinative of Reason 2 burden. |
| MS (Somalia) v Secretary of State for the Home Department [2019] EWCA Civ 705, [2020] QB 364 |
Endorsed mirror image approach and burden allocation in cessation cases. |
Affirmed MA (Somalia) approach; cited for proposition that burden on SSHD applies to issues relevant to cessation. |
| KN (DRC) v Secretary of State for the Home Department [2019] EWCA Civ 1665 |
SSHD must show circumstances in connection with which recognition occurred have ceased and there are no other circumstances now giving rise to fear. |
Applied to emphasize SSHD's burden in Reason 1 cases and focus on current individual and country circumstances. |
| JS (Uganda) v Secretary of State for the Home Department [2019] EWCA Civ 1670, [2020] 1 WLR 43 |
Followed MM (Zimbabwe) and KN (DRC) on cessation principles. |
Referenced as consistent authority; not said to add further to the Reason 2 question. |
| PS (Zimbabwe) v Secrtary of State for the Home Department (Cessation principles) [2021] UKUT 283 (IAC), [2022] Imm AR 49 |
SSHD to demonstrate that grounds for grant have ceased and no other circumstances now give rise to well‑founded fear. |
UT authority restating SSHD burden for cessation (based on KN); considered but did not change conclusion on Reason 2 burden. |
| PO (DRC) v Secretary of State for the Home Department (DRC - Post 2018 elections CG) [2023] UKUT 117 (IAC) |
Country guidance: need to demonstrate actual or perceived political opinion contrary to current President or a profile of active opposition to establish risk. |
Applied by the UT to conclude the Appellant did not show the required political profile; used in assessing durable change in Country A. |
| AB and DM Democratic Republic of Congo CG [2005] UKAIT 00118 |
Identified continuing risk categories including those perceived to have connections with Country B and those perceived to be of certain ethnic groups. |
Cited for historic risk categories; Court considered relevance to Appellant's claim of being presumed to have connections with Country B. |
| LQ Afghanistan |
Authority cited in original grant regarding "particular social group" of unaccompanied/ street children. |
Cited in the Respondent's decision granting refugee status in 2012 to explain the social‑group basis. |
| MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216, [2023] Imm AR 713 |
Explains the "lower" standard of proof in asylum context as an assessment of risk. |
Used to describe the relevant standard of proof applicable to the Appellant's assertions. |
Court's Reasoning and Analysis
The Court set out the legal framework: the Refugee Convention Articles 1 and 33; UNHCR guidance on cessation; and paragraph 339A(v) of the Immigration Rules implementing the ceased‑circumstances clauses. The Court reviewed authority addressing cessation and burden/standard issues.
The Court accepted that the Respondent bears the burden of proof to show that the circumstances in connection with which refugee status was granted (Reason 1) have ceased. The central question was whether, having shown Reason 1 has ceased, the Respondent must also disprove any new basis relied on by the claimant (Reason 2), or whether the claimant bears the burden of proving Reason 2.
After analysing the authorities (including Hoxha, MM (Zimbabwe), Abdulla, MA (Somalia), KN (DRC) and others), the Court concluded that while the Respondent bears the burden with respect to cessation of Reason 1, the burden of proving Reason 2 rests on the claimant. The Court noted that several authorities deal with standard and burden in the cessation context but do not directly answer the Reason 2 question; the CJEU in Abdulla speaks to standard not burden; and the logic of the mirror‑image approach and other authorities supports placing the burden of proof for a fresh basis on the claimant. The Court observed that adverse inferences may be drawn where a claimant fails to produce evidence they could reasonably be expected to produce.
Applying that approach to the facts, the Court accepted the Appellant's core account of events in 2009–2010 as credible but concluded that the Appellant had not established that he would be perceived by Country A authorities to have connections with Country B or Group A if returned. The Court relied on points in the UT decision (including that the Appellant would be returned to City A rather than Region A) and on the anonymity of the Appellant during proceedings to support the finding that there was no reason to think Country A authorities would know of his alleged past profile.
The Court therefore held that the Appellant had not discharged the burden of proof with respect to Reason 2 and that the UT did not err in law in dismissing the Appellant's appeal. The Court also rejected the Appellant's challenge to the UT's finding of durable change in Country A on the facts advanced.
Holding and Implications
APPEAL DISMISSED
Holding: The Court dismissed the appeal. It held that, where Reason 1 for recognition has ceased, the burden of proving any different ground relied upon by the claimant (Reason 2) lies on the claimant.
Implications: The direct effect is that the Appellant's challenge to cessation fails and the revocation of refugee status is upheld. The Court answered the legal question on burden allocation in the circumstances presented. The opinion did not identify or purport to establish broader novel principles beyond the allocation of burden in the factual scenario before the Court.