Tribunal decisions

The decision

IAC-AH-co-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/02585/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 20 September 2016
On 15 November 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AA
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr Tettey, instructed by Parker Rhodes Hickmotts Solicitors
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. In this decision, I shall refer to the appellant as "the respondent" and to the respondent as the "appellant" (as they respectively appeared before the First-tier Tribunal). The appellant, AA, was born in 1989 and is a citizen of Somalia. He appealed against a decision dated 8 July 2015 to make a deportation order against him under the provisions of the UK Borders Act 2007. The First-tier Tribunal, (Judge Cruthers) in a decision promulgated on 7 December 2015 allowed the appeal on asylum grounds and human rights grounds (Article 8). The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. The background to the appellant's appeal is set out in the decision of Judge Cruthers at [14 - 20]:
"14. The appellant and his mother arrived in the UK on 10 August 2000 (when the appellant was aged ten) - the mother's claim to asylum (made on arrival) was granted on 4 October 2000. As the dependent of his mother, the appellant was, on the same day, granted refugee status and indefinite leave to remain in the UK. The appellant says that he has not left the UK since coming here in August 2000 (evidence at the hearing).
15. The appellant's mother had claimed that she was a minority clan member (Bajuni / Brava / Barawa). She said that she and her family had suffered at the hands of the majority Hawiye clan during the Somali civil war from the 1990s. She had left Koyama in July 2000.
16. Between 18 January 2005 and 26 June 2013 the appellant acquired 12 convictions for 19 different offences. Those offences consisted of one against the person; one against property; one theft and kindred offence; eight offences relating to the police/courts/prisons; and eight drug related offences.
17. The appellant's mother had made an application on his behalf for British citizenship on 2 August 2005 but that application had been refused on 1 November 2005 - on account of the appellant's then criminal convictions. For a similar reason, the appellant had an application for a travel document refused on 3 October 2013.
18. The appellant's index conviction was acquired in the Manchester Crown Court on 17 January 2013 and / or 4 March 2013. He was then convicted of possessing a controlled drug (Class A - MDMA) with intent to supply; possession of a controlled drug (Class B - cannabis/cannabis resin); and possession of a controlled drug (Class A - cocaine). The appellant was sentenced to a total of 2 years and 8 months imprisonment.
19. On 31 October 2013 the appellant responded to a warning as to possible deportation by raising article 8 of the ECHR. On 6 August 2014 he was notified again of his liability to deportation but on that occasion the notice included reference to exclusion from refugee protection pursuant to section 72 of the 2002 Act. The appellant's responses to this section 72 notice, and to the suggestion that he should be deported, were submitted to the Home Office on 16 August 2014.
20. The appellant's custodial sentence was completed on 24 October 2014 (at which point he was transferred to immigration detention). The appellant was released on bail on 8 April 2015 (with a weekly reporting condition)."
3. There are five grounds of appeal. First, the Secretary of State challenges the decision on the basis that the judge failed to give adequate reasons for refusing to uphold the Section 72 certificate (see Section 72 of the Nationality, Immigration and Asylum Act 2002). The judge considered Section 72 at [46]:
"46. Clearly the appellant has a presumption to rebut on this "section 72 issue". But on the totality of the evidence, I am prepared to accept that the appellant has rebutted that presumption. It is common ground that the appellant had not been sentenced to imprisonment before 2013. I am prepared to accept that the effects of imprisonment, particularly the separation from his wife and children, have had the desired effect of putting the appellant off the idea of further offending. The appellant also realises that he has put in jeopardy his continuing residence in this country and, therefore, has put at risk the family life that he currently enjoys with his wife and children."
4. He went on to say at [47]:
"47. Specifically, I refer to the appellant's stated remorse in his relevant letter of 16 August 2014 (annex I in the respondent's bundle). I am prepared to accept (as per that letter) that the appellant generally feels remorseful in respect of the damage from his offending, and intends to be a "morally good law-abiding citizen" (page I2). I have no reason to doubt the appellant's claim that he found himself work for the whole 19 months or so whilst he was on bail prior to his sentence (page I2b cp paragraph 6 of his statement). Similar points appear from the appellant's letter of 4 December 2014 at annex L."
5. The judge was careful to remind himself that "in accepting the appellant's case as to his not constituting an ongoing danger to the community, I am relying, to a significant degree on the assertions of someone who has been convicted of significant offences since 2005." Not unreasonably, the judge then found that it would be "difficult to identify what other types of evidence someone in the appellant's situation here could reply upon especially in the absence of OASys/similar reports assessing the risk of reoffending." The grounds suggest that the judge placed excessive weight upon his belief that the appellant had shown remorse for his reoffending. It is said that the judge could not have accepted the appellant's account of his own remorse because he later concluded [51] that the appellant had given untruthful evidence regarding the family living in Somalia.
6. I do not find the ground has merit. In a very thorough and detailed decision, Judge Cruthers has, so far as I can determine, made proper reference to and has weighed every aspect of the relevant evidence. He has reached an outcome plainly available to him on the evidence and has supported that outcome by cogent reasoning; a different judge may have come to a different decision, but that is not point. Further, given the care with which he has approached the task of fact-finding, considering each item of evidence and giving detailed reasons for his findings, I do not accept that Judge Cruthers has committed any legal error by accepting much of the appellant's account whilst specifically rejecting the appellant's evidence regarding the presence of family members in Somalia. The Secretary of State appears to assume that, if any item of an appellant's evidence is rejected by the Tribunal, then the judge has no option but to find the entire evidence wholly unreliable. When reasoning is inadequate then there may be some merit in such an approach but not here for the reasons I have given above.
7. The second ground of appeal concerns the decision of the judge not to uphold the cessation of the appellant's refugee status.
8. The judge assessed the question of real risk on return to Mogadishu at [67 - 69]:
"67. Although the burden is on the appellant again here, I repeat that paragraph 47 of the RFDL accepts that the appellant has "no nuclear family living in Mogadishu, and you may not have any clan support for a societal reason being of a minor clan". Quite possibly the respondent's case here, largely based on the findings in MOJ, would have some force if the appellant originated from Mogadishu. But even on the "MOJ analysis" (see the extracts above - headnote (xii) of MOJ, for example) it would be difficult to find that someone from a minority clan who does not originate from Mogadishu would not face a real risk of serious harm on relocating to Mogadishu - especially when there is no basis to think that the appellant has a contact in Mogadishu, much less patronage from a majority clan available to him in Mogadishu.
68. I have borne in mind that the appellant's English language, and experience of working in the UK, might be of some benefit to him in Mogadishu. There is also the possibility of supportive remittances from abroad. On the latter, if the appellant were deported it is unlikely that Ms Taylor would be in a financial position to send substantive sums of money to him in Somalia (see her statement). And since the appellant's mother is also dependent on benefits (evidence in chief) similar reasoning applies to the possibility of remittances from her. It also seems to me that in Mogadishu receiving monies from abroad might be something of a double-edged sword. Unless one was in a position to provide oneself with very good security arrangements, being in receipt of monies sent from Europe might well render one more vulnerable to robbery/attack.
69. In my assessment the appellant's case as regards him being likely to be at risk in Mogadishu is reinforced by the extracts from his country evidence reproduced in his Key Passage Index. Here I refer particularly to the extracts which the Key Passage Index cites from the pages of the reports found at pages 101 and 117. Contrary to paragraph 54 of the RFDL, I do not think that a "return to" (sic) Mogadishu can properly be considered to be a viable option for this appellant. (Here I endorse the risk factors relating to Mogadishu that Mr Schwenck sets out at paragraph 34 of his Argument)."
9. The judge has made it clear that he relies on the country guidance of AMM (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) and MOJ (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). The Secretary of State submits that there will be no risk (in the light of MOJ) of an appellant (an "ordinary citizen") returning to Mogadishu. However, the grounds overlook the fact that the appellant has to travel to Kismayo, his home area of Somalia. Even the respondent's refusal letter acknowledges the appellant "could be at risk of harm travelling through Mogadishu and Kismayo although it is not considered that [you would be] any more at risk than any other traveller." Not unreasonably, Judge Cruthers characterised this statement as a rejection of the appellant's claim that he would be at real risk on return as "hardly overwhelming." Indeed, the judge noted that, when the appellant reached Kismayo he would have to travel on to Koyama the place where he would be identified as "westernised" having no Somali language and a very limited understanding of Bajumi. The reference in the grounds (2(d)) dismissing the suggestion the appellant might "look a bit westernised" refers not to the judge's own assessment but that of a Danish Fact-Finding Mission in 2013 which indicated that individuals who "look a bit westernised" are more at risk of death/serious harm when travelling in Southern Somalia than "the average traveller". The fact the appellant may have characteristics which expose him to a greater risk than the average traveller appears to have been overlooked by the author of the refusal letter (see above). In any event, I find the analysis of the judge at [67 - 69] to be wholly supported by the background material and is both cogent and clearly expressed. The grounds seek to point to a number of factors which the Secretary of State believes might enable the appellant's reintegration into Somali society but, considered against the wealth of detail in Judge Cruthers' analysis, the ground amounts to nothing more than a disagreement with the findings of the judge.
10. The third ground of appeal concerns the Immigration Rules/Article 8 ECHR analysis. It is contended that the judge failed properly to interpret "unduly harsh" as regard the effect which the removal of the appellant would have upon his family. I note [86] that the Secretary of State does not consider it in the interests of the appellant's children to "go and live and war torn Somalia." The judge found that the appellant is entitled to succeed under paragraph 399A of HC 395. Having found that the judge's finding as regards to the risk to the appellant on return to Somalia is fair and accurate, I consider that the judge's assessment that the "very significant obstacles" which would be encountered by the appellant on return would also impede his integration into Somalia [82], [83 - 84] the judge wrote:
"82. As far as (c) of 399A is concerned, my findings as to risk above mean (inevitably) that the appellant would face very significant obstacles as regards integration in Somalia. (This would apply even if the appellant is excluded from the protection of the refugee convention and excluded from humanitarian protection).
83. That leaves (b) of 399A. Since the appellant presumably attended UK schools from the ages of about 10 to 13 or 14 (paragraph 6 of his statement), and is married to a British citizen (with British children), it would be difficult to hold that he is not socially and culturally integrated in the UK. Again, the appellant's evidence (as to not having engaged with any "Somali community" in the UK) is convenient - but there is no proper basis for rejecting that evidence
84. As I understand it, the reference on page 19 of the RFDL to "previous imprisonment sentences" is wrong. That leaves the respondent's argument on paragraph 399A dependent on asserting that the time in prison /detention served by the appellant from June 2013 to 8 April 2015 means that he is not socially and culturally integrated in the UK. I do not think that that is a sustainable argument - taken in the context of the appellant having lived in the UK for over 15 years, his ongoing marriage to / partnership with a British citizen and his ongoing relationship with his British citizen children. It seems to me that the appellants' case must succeed by reference paragraph 399A."
11. The grounds also assert [5] that the judge attached insufficient weight to the public interest concerned with the removal by deportation of a criminal convicted of supplying class A drugs. I agree with what is said in the Rule 24 statement submitted by the appellant's solicitors; significantly, the judge has allowed the appeal under what he describes in his decision as "human rights grounds (by reference to the 'Article 8 deportation Rules')". As the Rule 24 statement asserts, the Rules in respect of deportation are intended to provide a complete code, fully reflecting the provisions of Article 8 and relevant associated jurisprudence. Indeed, it is the application of this "code" which led the judge to reject the appeal under paragraph 399(b) (the appellant's relationship with his partner, Ms T). I find that the judge has lawfully allowed the appeal under the "Article 8 deportation Rules." It follows that the judge has, in the analysis leading up to that decision, properly taken account of the public interest which is reflected throughout in the provisions of the Rules. There was no need for the judge to make an assessment of the public interest over and above that provided for in HC 395 (as amended).
12. I am entirely satisfied that the judge has reached an outcome in this appeal which was available to him on the evidence. I find that he has not erred in law for the reasons asserted in the grounds of appeal or at all. The appeal is dismissed.

Notice of Decision
This appeal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 10 November 2016

Upper Tribunal Judge Clive Lane