Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: DA/01641/2013
IA/18986/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 26th March 2014
On 16th April 2014

Before

upper tribunal JUDGE RENTON

Between

M A I
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Vaughan, Counsel instructed by Kesar & Co Solicitors
For the Respondent: Ms A Everett, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction
1. The Appellant is a citizen of Somalia born on 9th September 1975. The Appellant has a complicated immigration history, but suffice it to say at this stage that on 9th August 2012 as a consequence of the Appellant's criminal convictions, the Respondent decided to make a deportation order against him under the provisions of Section 3(5)(a) Immigration Act 1971 on the basis that it would be conducive to the public good to do so. Subsequently the Respondent also refused an application for asylum made earlier by the Appellant. The Appellant appealed those decisions, and on 9th October 2013 that appeal was heard by a Panel chaired by Judge of the First-tier Tribunal Page (the Panel) sitting at Newport. The Panel decided to dismiss the appeal on asylum and Articles 2 and 3 ECHR grounds, but to allow the appeal on Article 8 ECHR grounds. The reasons for those decisions are given in the Panel's Determination dated 16th October 2013. Both the Appellant and the Respondent sought leave to appeal those decisions, and such permission was granted to both parties on 8th November 2013.
Error of Law
2. I must first decide if the decisions of the Panel contained an error of law so that they should be set aside.
3. The decision to deport the Appellant was made on the basis of his offending which can be summarised as follows:
(i) On 18th December 1998 the Appellant was convicted at Cardiff Crown Court of an offence of manslaughter and sentenced to five years' imprisonment.
(ii) On 10th December 2004 the Appellant was convicted at Cardiff Crown Court of an offence of affray and sentenced to a community punishment order for 90 hours and a community rehabilitation order for eighteen months.
(iii) On 16th December 2008 the Appellant was convicted at Cardiff Crown Court of the offences of unlawful wounding and failing to surrender to custody. He was sentenced to nine months' imprisonment.
(iv) On 9th February 2012 at Cardiff and the Vale of Glamorgan Magistrates' Court the Appellant was convicted of the offence of being drunk and disorderly and failing to surrender to custody for which he was fined.
(v) On 11th May 2012 at Cardiff and the Vale of Glamorgan Magistrates' Court the Appellant was convicted of the offence of common assault and sentenced to six months' imprisonment.
The decision to deport the Appellant was expressly made in respect of the offences of unlawful wounding in 2008 and the offence of common assault in 2012.
4. The Appellant's asylum claim was made on the basis that he feared that on his return to Somalia he would become the victim of a blood feud because the person he had killed in Cardiff in 1997 was a Somali national F A whose family would seek revenge. That family belonged to the Habr Awal tribe in Somalia. There would be no protection for the Appellant there. The Appellant had been attacked by a member of F A's family whilst in prison, and the Appellant's family had been threatened. Indeed there had been an incident at court in December 1998. At other times the Appellant had been attacked with a metal bar when his hand had been broken, and later with a baseball bat when his forearm had been broken. The Appellant claimed that F A's family came from a majority clan in Somalia who would be able to locate him if he ever returned to that country. The Appellant had been warned that there was a bounty on his head, and he claimed that F A's family would know of his return to Somalia.
5. The Panel dismissed the appeal on asylum grounds because having considered the objective evidence provided by UNHCR and a report from an expert, Dr Bekalo, it came to the following conclusion:
"52. We find ourselves in agreement with the assertion made by the case worker refusing the Appellant's asylum claim that Dr Bekalo's assertion that the Appellant would face the risk of revenge attacks is speculative as it would rely on the family and friends of F A "happening to know" that the Appellant had been returned to inform persons in Somalia of that fact.
53. The Appellant has not lived in Somalia since he was a child. The claimed risk upon return would depend upon the Appellant being identified in Somaliland - or Mogadishu if he went to live there. There is no evidence before the Tribunal to show that there are 'family and friends' of the late F A in Somalia that are there to seek revenge."
6. At the hearing, Mr Vaughan argued that the Panel had erred in law in coming to that conclusion. He referred to his skeleton argument and submitted that the Panel had dismissed the appeal on the sole basis that there was no real risk that the Appellant's return to Somalia would be known by those who wished to persecute him. However, the Panel had not treated with anxious scrutiny and made findings upon the evidence given on the Appellant's behalf dealing specifically with that issue. In particular, no findings had been made on the evidence given of the Appellant's grandfather and also that of the Appellant relating to the attacks upon the Appellant and the threats made against him in the UK.
7. In response, Ms Everett argued that there had been no such error of law as the Panel had made its decision on the basis of the expert evidence that it was only speculation that the Appellant's return to Somalia would be known by his enemies.
8. As regards the Panel's decision to dismiss the Appellant's appeal on asylum grounds, I find myself in agreement with the argument of Mr Vaughan that the Panel's decision contained a material error of law. It is apparent from what the Panel wrote at paragraphs 52 and 53 of its Determination quoted above that the only reason for dismissing the appeal on asylum grounds was its agreement with the view of the Respondent that it was only speculation that the Appellant's return to Somalia would be known by the family of the late F A and result in a revenge attack upon the Appellant. This reasoning is insufficient. In particular, and as argued by Mr Vaughan, it does not deal with the evidence given by the Appellant and members of his family concerning relevant events in the UK and the nature of the Somali clan system which would allow information to be transmitted from the UK to Somalia of the Appellant's movements. Contrary to what was argued by Ms Everett, the objective evidence and in particular the expert report of Dr Bekalo did not contradict the Appellant's assertion that his return to Somalia would become known to the family of the late F A.
9. The Panel allowed the appeal on Article 8 grounds. The Panel was satisfied that the provisions of paragraph 398(c) of HC 395 applied to the Appellant, but not those of paragraphs 399 and 399A. Therefore following the decision in MF (Nigeria) v SSHD [2013] EWCA Civ 1192, the Panel went on to consider the Appellant's Article 8 ECHR rights. The Panel followed the format given in Razgar [2004] UKHL 27. The Panel found that the Appellant had a family life in the UK with his mother, his adult siblings, and his niece, nephew, and cousins. The Appellant also had a private life. The Panel concluded that the interference with that family and private life as a consequence of the Appellant's deportation was not proportionate. In reaching that decision, the Panel found, compelling and therefore exceptional factors in the Appellant's favour being the fact that excluding the time spent in prison, the Appellant had lived in the UK for over twenty years. The Appellant presented a low risk of re-offending and he had not indeed re-offended since his last release from prison some eighteen months previously. The Appellant had not committed a serious offence since 2008, and in respect of that offence, the Respondent had not thought it serious enough to warrant the Appellant's removal. The Appellant had an extensive family in the UK.
10. At the hearing, Ms Everett argued that the Panel had erred in law in reaching its conclusion in respect of the Appellant's Article 8 rights. The Panel had attributed insufficient weight to the public interest. In particular, the Panel had failed to take into account the entirety of the Appellant's offending history which was relevant as the Respondent's decision was made on paragraph 398(c) grounds on the basis that the Appellant's deportation would be conducive to the public good as the Appellant was a persistent offender. The Panel demonstrated its concern as to the future potential violent behaviour of the Appellant by its comments at paragraph 87 of the Determination. The Panel was wrong to mitigate the weight to be attached to the public interest on account of the history of the immigration decisions relating to the Appellant. There had not been a significant delay.
11. In response, Mr Vaughan submitted that the Panel had not made any error of law in its deliberations. The Tribunal had carried out a fuller analysis and had applied the correct test at paragraph 79 of the Determination. It was not wrong to consider that Article 8 ECHR allowed a broader view than the Immigration Rules. The Panel had taken full account of the nature of the Appellant's offending and it had been open to the Panel to find that the Appellant was not a persistent offender. The Panel had correctly identified the fact that in recent times the Appellant had only committed minor offences.
12. I find no error of law in the Panel's decision in respect of Article 8 ECHR. The Panel found exceptional factors so that the decision to deport the Appellant was disproportionate. This was a decision open to the Panel on the evidence before it and which it fully reasoned. Ms Everett's argument is that the Panel failed to attach sufficient weight to the public interest. It is a matter for the Tribunal to decide what weight to be attached to any particular factor. In this case, in my view it cannot be said that the Panel did not take into account the nature of the Appellant's offending. The Panel set out the chronology of the Appellant's convictions at the start of the Determination and went on to analyse that information thoroughly at paragraphs 59 to 63 inclusive of the Determination. The Panel then explained at paragraph 81 its decision to attach only a limited weight to the public interest. The Panel did make some remarks as to its concerns at paragraph 87, but the Panel found that there was a low risk of the Appellant re-offending on the basis of evidence from a forensic psychologist.
13. To summarise, I find an error of law in the decision of the Panel to dismiss the appeal on asylum grounds. That part of the decision is set aside. As there have been almost no findings of fact made in respect of the Appellant's asylum claim, I remit that part of the appeal to be reheard in the First-tier Tribunal in accordance with paragraph 7.2(b) of the Practice Statements. I find no error of law in respect of the decision of the First-tier Tribunal relating to the Appellant's Article 8 ECHR rights and that part of his decision is not set aside.
Anonymity
14. The First-tier Tribunal made an order pursuant to Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. I continue that order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed Date

Upper Tribunal Judge Renton