Tribunal decisions

The decision

IAC-HX-MH/11-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/00004/2015
PA/00467/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 July 2016
On 28 November 2016

Before

upper tribunal judge conway

Between

ABDIRIZAK [A]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hoshi
For the Respondent: Mr Bramble

DECISION AND REASONS
1. Mr [A] is a citizen of Somalia born in 1980.
2. In brief his immigration history is as follows: he entered the UK on 22 December 1994 as a dependent of his aunt who on the same day claimed asylum. Her claim was refused but she was granted exceptional leave outside the Rules until 30 May 1996. She was subsequently granted indefinite leave to remain. Mr [A] on 31 March 2003 was also granted indefinite leave to remain.
3. He was convicted on one count of conspiracy to commit violent disorder and was sentenced on 24 October 2014 to fourteen months' imprisonment.
4. On 6 February 2015 the Secretary of State made a decision to make a deportation order.
5. He appealed claiming that deportation would breach the Immigration Rules and his human rights.
6. Following a hearing at Taylor House on 11 August 2015 Judge of the First-tier Beach allowed the appeal under the Immigration Rules and on Humanitarian Protection grounds. She dismissed the appeal on human rights grounds.
7. At that hearing it had been agreed that the issues were whether Mr [A] could succeed under paragraph 399/399A of the Rules, Article 3 on medical grounds and as an Internally Displaced Person (IDP) and Article 15(c).
8. The Tribunal's findings are at paragraph [67 ff]. She found that Mr [A] has a child aged 3 who is a British national who lives with his mother. There is a Contact Order and Mr [A] has 'weekly weekend contact with his son'. The judge was satisfied that he has a 'genuine and subsisting relationship' with the child [72].
9. It was noted that the Secretary of State accepted that it would be unduly harsh for the child to live in Somalia.
10. The next issue was whether it would be unduly harsh for the child to remain in the UK without his father (paragraph 399(a)(i)(b)).
11. The judge found that it would be. He has a 'significant relationship with his son'. The unstable situation in Somalia meant that it was 'extremely unlikely' that the son's mother would allow him to travel to Somalia to spend time with his father if such was even practicable given the living conditions in which he may be living. Also, it was unlikely that a Family Court would order that the child be allowed out of the jurisdiction to visit his father in Somalia. Making arrangements to visit his son in a different country 'would entail some expense' and there was 'no guarantee that (he) would be able to access the level of funds required to allow for such visits to take place' [74].
12. Further, the child being so young 'it would be difficult for him to understand why his father had left him'. Moreover, contact by Skype or similar methods was likely to be problematic given that he will 'still be re-establishing himself in Somalia and may well be in an IDP camp for at least a period of time'. Such electronic contact would in any event not 'be anywhere near equivalent' to the weekend contact his son enjoys with his father. The boy is also too young to appreciate letters and emails even if these could be arranged in Somalia. The consequence was that there is 'likely to be a real lack of contact between the Appellant and his son and this is likely to have an adverse impact on the child's mental health'. The separation, accordingly would be 'more than difficult or uncomfortable and would reach the higher test of being severe' [74].
13. Turning to consider paragraph 399A the judge found that Mr [A] has lived lawfully in the UK for twenty years. It was accepted that he was socially and culturally integrated in UK society. He speaks English and his family and friends are here.
14. The judge went on to consider medical evidence including that in June 2015 he was detained under the Mental Health Act. A psychiatric report indicated he suffers from a psychiatric disorder 'which is closely related to his use of psychoactive substances particularly cannabis'. The judge found that he 'clearly has mental health problems' [80] which will 'make it harder for him to re integrate into Somalia' [81].
15. The judge went on to find that he has no family connections in Somalia and is from a minority clan.
16. In concluding her consideration of paragraph 399A the judge again noted that Mr [A] has lived in the UK for over twenty years. She found that the claim not to speak Somali was 'likely to have been an exaggeration'. However, in finding that he would face very significant obstacles in reintegrating into Somalia, she found relevant as well as his long stay in the UK 'that Somalia is still an emerging country with pockets of civil unrest and parts of which are still controlled by Al-Shabab' [83], that he would not have easy access to clan assistance or to family in Somalia. Also that his aunt is on benefits so has limited funds to send him while he reintegrates. In addition he has few qualifications and very little work experience on which to call. Finally, his mental health issues and pancreatic illness are likely to make it harder for him to readjust. Medication is not necessarily easily available.
17. Moving on to consider Humanitarian Protection, the judge again noted that Mr [A] would not have family to support him in Somalia. His mental health 'may give rise to issues which bring him to the adverse attention of Al-Shabab'. He will not know the areas to avoid and will be placed at risk of suffering serious harm from Al-Shabab. Having been away for so long he would not have the resources to understand what was required of him in an Al-Shabab area which could lead to a real risk of harm. Also 'his understanding of events is made more difficult by his mental health difficulties which he seems to find it hard to cope with ?' [85].
18. All in all, the judge concluded that Mr [A] would be at real risk of suffering serious harm such as to succeed on HP grounds.
19. Dealing next with Article 3 she briefly considered two matters. She found it likely that he would have to seek support and shelter in an IDP camp. Whilst conditions there are 'unlikely to be of a standard which the Appellant would hope to live in' there was little evidence before her with regard to conditions in the IDP camps. The judge concluded that the conditions 'would not reach the high standard required to engage Article 3' [86].
20. The judge on the second matter considered that Mr [A] could not succeed under Article 3 solely on medical grounds.
21. The Secretary of State sought permission to appeal which was refused. It was granted on reapplication on 31 May 2016. At the same time permission to appeal was also granted to Mr [A].
Error of law
22. Mr Bramble for the Respondent did not seek to argue the first ground (clan membership). He sought to concentrate on the judge's treatment of paragraphs 399(a)(i)(b) and 399A. On the former she had applied the wrong test (MAB (para 399; 'unduly harsh') USA [2015] UKUT 435 (IAC)) and it was not clear that proper weight had been given to the public interest in deportation. On the latter the conclusion that there would be very significant obstacles to the Appellant's reintegration was not one that was reasonably open to her. He speaks some Somali and has worked in the UK. There is no reason why these factors would not assist him on return. Also even if her income, through benefits, is modest there is no reason why his aunt could not give some financial help. Further, great weight had been placed on his mental health. However, the documentary evidence submitted about that was vague.
23. The remaining matter was the judge's conclusion on Humanitarian Protection. On this issue the judge again had placed emphasis on the Appellant's mental health as precluding his judgment and affecting his ability to make sensible choices. However his mental health does not appear to have prohibited him from working in the UK, nor does he appear to require 'supported living' albeit that he lives with his aunt. Her finding that he might be at risk from Al-Shabab was speculative. Inadequate reasons had been given as to why he would be incapable of living in Mogadishu.
24. In reply Mr Hoshi submitted that the Respondent's submissions in respect of paragraph 399A amounted to nothing more than a disagreement with the judge's findings. The judge had given sound and detailed reasons. She was entitled to give weight to the significant deleterious impact that deportation would have on his mental health.
25. As for paragraph 399(a)(i)(b) Mr Hoshi submitted that even if it was an error of law to follow MAB it was clear nonetheless that the judge had the strong public interest in deportation at the forefront of her mind in particular at [68] and [69].
26. On the issue of Humanitarian Protection Mr Hoshi again submitted that the criticism amounted to no more than a bare disagreement. The judge had found that the Appellant would be likely to have to live in an IDP camp. This combined with his severe mental health difficulties was sufficient for the judge to find that he would be at risk of serious harm.
27. In his submissions in the counter appeal Mr Hoshi made two points. First, having found that the Appellant was likely to have to live in an IDP camp the Country Guidance indicated that he would be living in conditions that fall below acceptable humanitarian standards. In failing without explanation to follow the Country Guidance the judge erred. The appeal should have been allowed under Article 3. Having allowed the appeal on Humanitarian Protection grounds it was materially inconsistent for her to dismiss it under Article 3.
28. Mr Hoshi did not press the final ground, that the judge failed to deal with Article 15 (c).
Consideration
29. In considering this matter I deal first with the Respondent's submissions. First paragraph 399(a)(i)(b). The judge (at [74]) refers to MAB. The Upper Tribunal held in that case that the 'unduly harsh' test did not involve a balancing exercise between the public interest in deportation on the one hand and the impact on removal on the child on the other, rather the focus was exclusively on the effect on the innocent child. However, subsequently in MA (Pakistan) & Ors v UT [2016] EWCA Civ 705 the Appeal Court following MM (Uganda) v SSHD [2016] EWCA Civ 450, held that wider public interest considerations must be taken into account when applying the 'unduly harsh' criteria.
30. The judge does (at [68]) mention the sentencing remarks which refer to the offence as 'relatively serious'. At [69] the judge acknowledged that this was a 'serious offence and it is clear that there were a number of aggravating factors in that offence'. However, there is no reference at all in her analysis at [74] to the public interest. The consideration is solely about the effect on the child. While I make no criticism in respect of her findings on the effect on the child, the reference to MAB and the absence of any reference within the analysis to the public interest leads me to conclude that the judge's approach as to the 'unduly harsh' test was wrong and she thereby erred in law.
31. Turning to consider the analysis under paragraph 399A as indicated the judge examined this at [75 ff]. She noted that the Appellant has lived lawfully in the UK for at least twenty years, that it was accepted that he was socially and culturally integrated into UK society, that he speaks English and has family and friends here. As for what he would have in Somalia it was found that he does speak some Somali, but that he does not have family there and is from a minority clan. Also, he would have little financial support as his aunt is on benefits and would have limited funds to send him. These were findings she was entitled to reach on the evidence before her.
32. As the Respondent noted, the judge placed great weight on the Appellant's mental health. It was claimed that the documentary evidence on this was 'notably vague'. I disagree. The judge dealt with this in considerable detail from [76] to [80]. It was clear that the Appellant had a diagnosis of a psychiatric disorder, that he was detained under the Mental Health Act (indeed, he had three spells as an in-patient at an NHS mental health facility). There was also considerable evidence before her that while imprisoned at HMP Belmarsh (2014/15) he continued to suffer from mental health difficulties for which he was prescribed anti-psychotic and other medications. She was also entitled to find (at [42]-[47]) that there is a paucity of mental health care provision in Somalia.
33. I consider that it was open to her to find that the Appellant's deportation would have a significant deleterious impact on his mental health, that such would make it harder for him in respect of finding accommodation and work, and that such together with the other factors referred to by her in her consideration of paragraph 399A looked at cumulatively amounted to 'very significant obstacles' to his integration into Somalia.
34. Thus, while the judge erred in her consideration of paragraph 399(a)(i)(b), such was not material as the case succeeded under paragraph 399A of the Rules.
35. The other issue is Humanitarian Protection. This is dealt with at [84] and mainly [85]. I find [85] somewhat confusing. Despite the submission that the Appellant's individual circumstances were such that there was a real risk that he would be placed in an IDP camp, the judge appears to have allowed the appeal on HP grounds essentially because as a result of his mental health problems, he might come to the attention of, or wander into, an area where Al-Shabab had control. It seems to me that such is entirely speculative.
36. On the more relevant issue of having to live in an IDP camp the judge finds (at [86]) that such is likely. On the evidence found in that paragraph (long absence, lack of family/clan support structures, lack of likely financial support, serious mental health problems), she was entitled to reach that view. However, she finds that there was insufficient evidence to show that the conditions would be such as to reach the high standard needed to engage Article 3.
37. In fact, the judge in giving extracts from the Country Guidance case MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 had noted in her determination (at [41]) from the headnote that relocation in Mogadishu for a person of a minority clan, with no former links to the city, no access to funds and no form of clan, family or social support 'there will be a real risk of having no alternative but to live in makeshift accommodation where there will be a real risk of having to live in conditions that will fall below acceptable humanitarian standards' by which the UT meant conditions amounting to a breach of Article 3: 'It is likely that those who do find themselves living in inadequate makeshift accommodation in an IDP camp will be experiencing adverse living conditions such as to engage the protection of Article 3 of the ECHR' [420]. In failing to have regard, without reason, to the Country Guidance the judge erred.
38. I consider that having found that there was a real risk of the Appellant having to access an IDP camp (together with his mental health issues) the appropriate legal course was to allow the appeal under Article 3 rather than on Humanitarian Protection grounds.

Notice of Decision
The decision shows no material error of law in respect of the Immigration Rules and the decision allowing the appeal under the Rules shall stand.
The decision to allow the appeal on Humanitarian Protection grounds shows error of law and is set aside to be remade as follows:
The appeal is allowed on Article 3 (ECHR) grounds.
No anonymity direction is made.

Signed Date
Upper Tribunal Judge Conway