Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/02521/2013

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 24 January 2017
On 26 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M A S
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr I Richards, Senior Home Office Presenting Officer
For the Respondent: Mr G Hodgetts instructed by South West Law

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the respondent (MAS). This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they appeared before the First-tier Tribunal.
Background
3. The appellant is a citizen of Somalia who was born on 1 January 1972. He arrived in the United Kingdom on 18 April 2007 and claimed asylum the following day.
4. As a result of his entry into the UK on a false passport the appellant was convicted on 15 August 2007 of an offence of possessing a forged document and sentenced to a period of one years' imprisonment.
5. On 17 October 2007, the appellant was served with a notice to make a deportation order under s.3(5)(a) of the Immigration Act 1971 on the basis that his deportation was conducive to the public good.
6. The appellant appealed against that decision. The appeal was heard on 12 February 2008 by which time the Secretary of State had refused his asylum claim. The Asylum and Immigration Tribunal dismissed the appellant's appeal on all grounds. However, on 12 May 2008 the decision was set aside by the AIT and, following a fresh hearing, the appellant's appeal was again dismissed.
7. On 17 April 2009, the Secretary of State signed a deportation order against the appellant with removal directions set for 17 June 2009. The appellant's removal was temporarily stayed following a rule 39 application to the Strasbourg Court.
8. Subsequently, the appellant's representatives made further representations which the Secretary of State treated as an application to revoke the deportation order of 17 April 2009.
9. On 29 November 2013, the Secretary of State refused to revoke that deportation order.
10. The appellant then appealed to the First-tier Tribunal. The appeal was dismissed on 16 September 2014 but, on 15 April 2015, the Upper Tribunal set aside that decision and remitted it to the First-tier Tribunal for a fresh hearing.
The Current Appeal
11. The remitted appeal was heard by Judge Powell on 26 October 2015. It is this appeal which is the subject of these proceedings.
12. In a determination promulgated on 30 October 2015, Judge Powell allowed the appellant's appeal under Arts 3 and 8 of the ECHR.
13. Judge Powell found that the appellant was from a minority clan and had no family in Mogadishu. As a consequence, the appellant was likely to have to live in an IDP camp if returned to Mogadishu. On the basis of a concession made by the Presenting Officer before Judge Powell, in those circumstances, Judge Powell found that the appellant's return to Mogadishu would breach Art 3.
14. The Secretary of State sought permission to appeal Judge Powell's decision and permission was granted by the First-tier Tribunal (Judge Reid) on 17 November 2015.
15. On 1 December 2015, the appellant filed a rule 24 response seeking to uphold the Judge's decision.
16. The appeal was initially listed before me on 14 June 2016. There was, at that hearing, some dispute as to whether or not the Presenting Officer had made a concession before Judge Powell, as set out in para 20 of his determination, namely that if the appellant were found to be a member of a minority clan and without familial support in Mogadishu, he would have to live in an IDP camp and would be entitled to protection on the basis of Art 3.
17. In order to resolve the issue, I adjourned the hearing and issued directions on 14 June 2016 that each of the parties should file with the Upper Tribunal within fourteen days a witness statement from the parties' respective representatives at the First-tier Tribunal hearing as to what, if any, concession had been made by the Presenting Officer at that hearing.
18. There then followed a delay in complying with the directions and some confusion that led to a late submission of the Presenting Officer's statement on 12 October 2016.
19. The appeal was again listed before me on 1 November 2016. At that hearing, I considered the Presenting Officer's witness statement which indicated that the Presenting Officer had no direct recollection of whether he had made a concession but indicated that he did not accept that he knowingly made the concession as outlined in para 20 of Judge Powell's determination. The statement from the appellant's counsel at the First-tier Tribunal hearing, Mr Hodgetts (who properly did not represent the appellant at that hearing on 1 November 2016 before me) was firm in its view that the concession had, in fact, been made. Mr Richards, who represented the Secretary of State (then as now) did not seek to challenge the integrity of Mr Hodgetts and acknowledged that there were good grounds for accepting that the concession had been made. In the course of the hearing, I indicated to the parties that I was satisfied that the concession had been made as set out in para 20 of the judge's determination and I accepted Mr Hodgetts' clear and firm recollection of what had transpired at the hearing.
20. The appeal was again adjourned as the representatives were not in a position to refer me to the relevant case law concerning the circumstances, if any, in which the Secretary of State could in an appeal withdraw a concession. That appeared to be a live issue.
21. The appeal was listed finally before me on 24 January 2017.
22. At that hearing, Mr Richards accepted that the Presenting Officer had made a significant concession before Judge Powell and that the Secretary of State no longer sought to argue that Judge Powell's determination contained an error of law. He did not seek to go behind the concession. Mr Richards accepted that Judge Powell had been entitled to allow the appellant's appeal under Art 3 based upon the concession made by the Presenting Officer. He accepted that the Secretary of State's appeal to the Upper Tribunal should fail and that the decision of the First-tier Tribunal should stand.
Decision
23. In those circumstances, the decision of Judge Powell to allow the appellant's appeal under Art 3 (and Art 8) of the ECHR did not involve the making of an error of law. His decision to allow the appeal on those grounds stands.
24. Accordingly, the Secretary of State's appeal to the Upper Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date 26/01/2017