Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI-2021-001174
UI-2021-001866
First-tier Tribunal No: HU/05768/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 29 April 2023

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

N.H
(anonymity order made)
Appellant/Respondent
and

Secretary of State for the Home Department
Appellant/Respondent

Representation:
For the Appellant: Ms Short, Counsel instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr Bates, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 9 January 2023

Order Regarding Anonymity

NH has been recognised as a victim of trafficking. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, he must therefore be granted anonymity.

No-one shall publish or reveal any information, including the name or address of NH, likely to lead members of the public to identify him. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. NH, whose future is the subject of this matter, is a national of Somalia born in 1998. He has lived in this country since he was 3 years old, and for 17 years held valid leave to remain. That leave came to an end on the 7th August 2019 when the Secretary of State signed a deportation order against him, after he was sentenced to two years in a young offenders institution.
2. NH appealed against the decision of the Secretary of State to deport him on both protection and human rights grounds. By its decision of the 27th September 2021 the First-tier Tribunal (Judge Veloso) dismissed his protection claim but allowed the appeal on human rights grounds, with reference to Article 8 ECHR.
3. On the 2nd February 2022 Upper Tribunal Judge Rimington granted the Secretary of State permission to appeal against the positive human rights decision. For reasons that are unclear there was then a substantial delay in the Tribunal dealing with NH’s cross-appeal against the protection findings. Permission was granted on those grounds on the 13th September 2022 by Upper Tribunal Judge Perkins.
4. The grounds in each of the discrete appeals before me are not easy to disentangle, since a number of the issues overlap the protection and human rights issue. I have therefore found it necessary to begin with distillation of the First-tier Tribunal’s reasoning and the matters in issue.
The First-tier Tribunal Decision
5. The First-tier Tribunal begins its decision by addressing the reason why NH is facing deportation. That was his assault on a man who was buying, or had bought, drugs from him. The Tribunal sets out in full the sentencing remarks of the trial judge, the key part of which describes the vicious nature of the assault:
"when [the victim] ... was unable or deliberately stalled at the cashpoint in order to provide his number, you became frustrated with him. Your response was to enforce your drugs deal in a violent and thoroughly unpleasant manner. You can be seen clearly on that footage when the numbers are not being put in properly to make a deliberate action of putting your hood up. You put your hood up to look more frightening, no doubt, and more intimidating and then you proceed to assault the complainant. You stamp at him. You put your arm round his neck, you throw him to the floor where he is stamped upon and then you proceed to punch him and you punch him at least some seven times before stamping on him again. It is worthwhile noting that during the course of that incident ... your co-accused in the trial comes up in order to attempt to restrain you to some extent. I see you nodding, but that does not stop you attacking [the victim] ... and you continue with that assault …”
6. The Tribunal goes on to conduct an examination of the evidence regarding the offence, and the rehabilitative work undertaken by NH, before concluding that it would not uphold a s72 certificate imposed by the Secretary of State. It is common ground that there was no certificate ever imposed in this case, so that part of the decision can be disregarded, save to the extent that the conclusion that NH had rebutted the presumption that he remains a danger to the community remains ‘live’ for the purpose of the subsequent Article 8 balancing exercise.
7. The Tribunal then turns to consider whether any of the ‘exceptions’ to the automatic deportation process might be engaged. There were two potential grounds. The first was if NH could show himself to be a refugee. The second was if he could show the decision breached his human rights. NH relied on Article 3, Article 4 and Article 8 of the ECHR. In respect of the latter he relied in particular on the ‘shortcut’ provided by s117C(4) of Nationality, Immigration and Asylum Act 2002. If he could show that he had lived lawfully in the UK for most of his life, he was socially and culturally integrated in the UK, and there were very significant obstacles to his integration in Somalia, he would have demonstrated that it would be a disproportionate interference with his private life to deport him. The Tribunal’s findings were as follows.
8. It was not in issue that NH left Somalia as a toddler and that he would have no meaningful memory of that country. Although his mother had sought protection on the grounds that they were members of the Midgan clan, a minority group in Somalia, the Secretary of State had concluded that membership of a minority clan was not in itself grounds for a grant under the Refugee Convention, reasoning subsequently upheld by the Upper Tribunal in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). That decision also held that no risk arose to returnees who might be perceived as ‘western’ by actors such as al-Shabaab. That being the case, concluded the First-tier Tribunal, there was no basis upon which to conclude that NH’s deportation today would place the United Kingdom in breach of its obligations under the Refugee Convention.
9. Moving on to consider NH’s wider circumstances in Somalia the Tribunal noted the evidence that the Secretary of State had tried to remove him there in November 2019. The evidence was that an individual identified in the decision as MAH had been waiting for him at Mogadishu airport, at the behest of NH’s uncle, who lives here. The Somali authorities had in the end denied NH entry to the country and so he had ended up back in the UK. The question arose, in the appeal heard in August 2021, what had happened to MAH, and how might he be relevant to the prospects for NH’s integration in Somalia? NH had never himself met the man, but gave evidence before Judge Veloso that he had heard that MAH had been killed in a bomb attack a couple of months after the failed deportation. NH’s mother gave evidence that MAH lived in a cold place, some two days journey from Mogadishu. She did not know if he had been killed in a bombing; her son had heard that on the news but it had not been confirmed to her. She had no contact with MAH. The uncle who had made the original arrangement was not called to give evidence; NH claimed that they had fallen out. The Tribunal took a dim view of all of this. It did not accept that MAH was dead, or that the family in the UK had lost contact with him. Nor did it accept the evidence that NH was now estranged from his uncle. It found that MAH constituted a “family/support network”. NH is in addition an able young man who can still speak Somali. These factors lead the Tribunal to conclude that there was no real risk of NH falling into destitution or having to enter a refugee camp; it further finds that there are not “very significant obstacles to his integration“. On this basis the Tribunal dismisses the appeal on Article 3 grounds, and finds that the ‘private life’ exception to the automatic deportation process is not engaged, notwithstanding that he could meet the first two criteria in that three part test: it is accepted that he has been lawfully present in the UK for most of his life and that he is socially and culturally integrated here, but not that there are very significant obstacles to his integration in Somalia.
10. In respect of the Article 4 grounds the Tribunal accepted that it was reasonably likely that NH had been a victim of trafficking in the UK (this finding was reached on the “strict and limited basis” that no conclusive grounds decision had at that stage been made). He had not, however, been trafficked in Somalia and so this was not a case where there was any danger of him being ‘returned’ to his traffickers. Whilst he has been diagnosed with PTSD he did not appear to require any treatment for that condition, and he could always turn to MAH for help once back in Somalia. That being the case, NH had not shown there to be a real risk that he could be subject to trafficking if returned to that country.
11. Embarking on the final global Article 8 appraisal required by s117C(6) the Tribunal recognises that there are a series of factors which weigh in NH’s side of the scales. He had, at the date of the hearing before the Tribunal, lived in the UK all of his conscious life. Having arrived here aged 3 he then spent the next 19 years here. Although little weight could be given to a private life built in precarious circumstances, the Tribunal noted that NH had been given limited leave to remain as an infant and had settled status before the decision to deport him was taken. He did not have an easy childhood. He was placed into care at various points – when he was 11, 14 and then again at 16 – because his mother could not cope. She was subject to serious domestic violence by various partners, and this was witnessed by NH, who was powerless to help. Being in care was “difficult and upsetting” for NH as he could not understand why he was unable to live with his mother. Despite that traumatic childhood NH had maintained a family life with his mother: he also has a brother, uncle and other family members in this country. This is an important part of his private life. Notwithstanding his criminal convictions, he was, the Tribunal was satisfied, socially and culturally integrated in the UK; in this regard it noted in particular that he had begun his criminal career as a young teenager in the care of the local authority. His offending behaviour was connected with his drug use, and the Tribunal accepted, having regard to evidence from the prison, from the probation service and NH himself that he was now free from drugs. The Tribunal was also prepared to accept, as I note above, that NH had been trafficked into dealing drugs at a young age, and had himself been under the threat of coercive violence. The Tribunal further says this: “I take into account the fact that he was sentenced to 2 years' detention in a Young Offenders Institution which is the minimum length required for him to qualify as a 'foreign criminal'.
12. Turning to the factors weighing against NH the Tribunal gives “full and careful weight to the strong public interest in deportation”, having regard not just to the index offence - which involved a particularly serious and sustained attack - but to numerous other earlier offences. Having regard to s117B(2) the Tribunal recorded that NH is not financially independent, although that was to some degree mitigated by the fact that he was unable to work because he did not currently have permission to do so. A further factor weighing against NH was the Tribunal’s finding that he would not face very significant obstacles to his integration in Somalia. Although he had not been to that country since he was a baby he was ‘enough of an insider’ to be able to re-establish himself there with the assistance of MAH. The fact that NH speaks English fluently is treated as a neutral factor.
13. Weighing all of these matters together, the Tribunal finds what it describes as the “high public interest in deportation” to be outweighed by the very compelling circumstances militating in favour of preserving the private life that NH enjoys in the UK.
The Secretary of State’s Appeal
14. In her grounds of appeal the Secretary of State makes three criticisms of the Tribunal’s findings on Article 8.
15. The first is that the Tribunal misdirected itself in respect of the qualifying length of sentence needed to trigger the automatic deportation regime. It is not 24 months it is 12 months. This ground is made out. As the parties agreed before me, the Tribunal appears to have misapprehended that there was a section 72 certificate in place in this case, and may well have had the two-year benchmark relevant to that provision in mind when it said, at its paragraph 83, that the two year sentence imposed on NH was the “minimum” needed to engage s32 of the Borders Act 2007.
16. The second ground relates to the Tribunal’s findings on the risk of future offending by NH, or more specifically, to the findings made by Ms Davies, a consultant forensic psychologist who prepared an expert report for the Tribunal. The grounds read:
13. Neither is it clear how Ms Davies managed to find that although there remained a medium risk of further violent offending, for whatever reason, at the same time there was a low risk of causing serious harm. It is submitted that this is a contradiction and even if the appellant was able to seek employment, this does not guarantee he will be employed immediately and while that is the case, according to the assessment, he remains a risk.
17. I read this ground as a criticism of the Tribunal’s decision to place weight on the assessment made by Ms Davies. The reason that her evidence assumed such significance in this appeal was that it was an unfortunate feature of the case before the Tribunal that neither party had been able to source a copy of the OASys assessment undertaken by the probation service whilst NH was still in custody. Hers was therefore the primary evidence going to the issue of rehabilitation.
18. Lisa Davies has been a Chartered and Registered Forensic Psychologist since 2004, and gained Consultant status in 2011. She has worked full time in prisons and secure hospitals since 2012. She has worked in low, medium and secure psychiatric services. She was the treatment manager for a violent treatment programme when working for HM Prison Service and has over twenty years of clinical experience of assessing risk of reoffending and the mental health and treatment needs in offenders. Against that background, there can be no serious suggestion that Ms Davies is not qualified to give the evidence that she did: indeed no such suggestion was advanced before the First-tier Tribunal, nor before me by Mr Bates. In fact, the First-tier Tribunal decision expressly sets out, at its paragraph 27, that in his closing submissions the Secretary of State’s representative on the day made no adverse submissions about any part of her report. The submission that her conclusions are unclear, or contradictory, is only now made before this Tribunal. It might be thought that this fact alone should deal a fatal blow to this ground of appeal, but for the sake of completeness I will address it.
19. Ms Davies made her assessment after having interviewed NH for a total of 6 hours, and administering a number of diagnostic tests. She records that assessment using the Level of Service Case Management Inventory (LS-CMI, Andrews, Bonta and Wormwith, 2011) indicates that the likelihood of NH engaging in further offending behaviours is considered to be moderate at the current time. She explains that at the time of her assessment he scored 17 on a scale of 0-49. He achieves scores for his criminal history, being suspended/expelled from school, being unemployed at present, and his non rewarding parental relationship with his father who left shortly after he was born. She then says this: “his score is artificially elevated by his current lack of employment; this is due to him not being eligible for work rather than being an indicator of poor motivation or work ethic or having difficulties in his relationship with employers or work colleagues. As such, I consider the LS-CMI to over-estimate his current risk of reoffending, due to four points being automatically allocated in the employment domain due to him being out of work at present, although accounting for this, his risk remains assessed as moderate. This assessment would not account for the risk of him being re-trafficked into committing further offences and assumes culpability for the most recent offence without consideration being given to his experience of being trafficked, thus also potentially over estimating his risk of reoffending”.
20. That was not the only diagnostic tool used by Ms Davies. As she explains, she used a further two measures. It is worth setting out her own summary of her findings in full:
Assessment using the HCR-20 V3 (Douglas et al, 2013), a structured assessment of the risk of violence, indicates a moderate risk of future violent reoffending at the current time (i.e. assaults). There is a low likelihood of him returning to the commission of robberies or other instrumental violent offences and there is a low likelihood of him committing acquisitive offences for perceived financial gain. There are no current associations with antisocial peers or gangs and no current factors like substance misuse that could complicate his risk management. [NH] is at increased risk of violence when associating with a criminal peer group, when perceiving a need to protect or defend those peers and driven by a desire to fit in and belong. He is not assessed as holding entrenched attitudes supportive of violence and there are no clear indications of recent ideations or persistent or intrusive thoughts to harm others since being in the community. At the current time, [NH] presents a moderate risk of future violence and a low risk of causing serious harm to the public in the UK.
Assessment using the SAPROF (Vogel et al, 2012), a structured assessment of protective factors that reduce the risk of further offences, indicates that there are a moderate number of protective factors present at the current time that would remain present if Mr. Hiris is allowed to remain in the UK. [NH] expresses a current pro-social orientation and reports to have positive and prosocial support from family members. He appears motivated to gain employment when eligible to do so. He has reasonably stable living circumstances with his uncle and is pleased to be residing away from the Birmingham area where the risk of him coming into contact with his traffickers is significantly higher. He is engaged in regular exercise, demonstrates a positive attitude towards authority and engagement in supervision, and has prosocial goals for the future. He has the capacity for empathy and there is no known engagement in maladaptive coping strategies. He reports willingness to engage in therapeutic intervention to assist him to understand and process his experiences of trauma. A psychological formulation of his offending is provided in Section 7.0. In conclusion, having reviewed the evidence contained within the documents available and my own clinical assessment of [NH] on 27th and 29th July 2020, totalling six hours of clinical assessment, in my psychological opinion, it is considered that [NH] presents with a moderate risk of general reoffending, a moderate risk of violent reoffending (assaults) and with a moderate level of protective factors available to mitigate the risk should he be granted the right to remain in the UK. He presents with a low risk of causing serious harm at the current time, and this is likely to remain low whilst he abstains from contact with antisocial peers, is not associating with individuals affiliated to gangs, and while he remains committed to living an offence free life and desisting from further offending. I do not consider [NH] to present a genuine and present threat to public security if allowed to remain the UK. At interview, he evidenced a generally pro-social orientation is currently present and he made no attempts to justify or excuse his engagement in criminal activity. There are a number of trafficking indicators present in his account and his experiences of trauma and trafficking have resulted in him receiving a diagnosis of PTSD, for which he would benefit from therapeutic interventions and anti-trafficking support.
21. As is clear from these passages, Ms Davies was not offering up a binary assessment of whether or not NH would ever commit a crime again. She was, quite properly, giving evidence about how the complex interaction of factors in his case could be assessed to make a calculated prediction. So while it is true that the words “low likelihood” and “moderate risk” appear in the same paragraph, I do not agree that the report is in any way contradictory or unclear. What it reflects is a nuanced, and balanced, evaluation conducted by a professional in the discipline and using the proper diagnostic tools. It was evidence – unchallenged evidence – that the First-tier Tribunal was perfectly entitled to place weight upon in its assessment of whether NH poses an ongoing risk to the community. Whilst a significant criminal record and a history of trauma and violence pointed in one direction, a multiplicity of factors pointed in the other. I am not satisfied that there can be any error of law in the First-tier Tribunal having taken the approach that it did.
22. The final ground argued by the Secretary of State is that the conclusions reached by the First-tier Tribunal under s117C(6) were “unclear and inadequate”, and inconsistent with the judgment in Olarewaju [2018] EWCA Civ 557. The grounds go on to mention several features of this case which also featured in Olarewaju, a case in which the appeal was dismissed.
23. Let me deal first with the reasons challenge. This is a submission with no merit. No one could read this decision and not understand what the relevant factors were. NH has lived here all of his conscious life, having fled civil war in Somalia; he grew up without a father figure and as a young child repeatedly witnessed his mother being subjected to violence; as a result of her failure to protect him from this he was placed into care, an experience that he struggled to cope with; he fell into criminality as a child under the care of the local authority, and did so at least in part under the threat of violence from gangs who had groomed him to undertake ‘county lines’ drug trafficking; he had demonstrated a willingness to put that life behind him by moving away from Birmingham (where the aforementioned gangs were based) and today demonstrated pro-social attitudes; he has been diagnosed, perhaps unsurprisingly, with PTSD; he continues to enjoy a family life with his mother and brother and is determined to move away from criminality into paid legitimate employment. Although the Tribunal does not expressly include this factor, to this I might add the obvious difficulties that NH would face in returning to Somalia: even if the Tribunal were correct to find that these difficulties were not so serious as to give rise to a breach of Article 3 or meet the test of ‘very significant obstacles to integration’, he would self-evidently face real challenges in reacquainting himself with a country he left as a baby, and where his only contact was a man he had never met. That those were, cumulatively, the reasons capable of amounting to very compelling circumstances was readily understandable from the decision. Nor can it be said that the Tribunal failed to properly weigh in the balance the public interest, since it repeatedly refers itself to the high threshold to be surmounted and sets out, in the form of the sentencing remarks, detailed evidence about the vicious and appalling nature of index offence.
24. As for the comparison to other cases I need not address this matter, since Mr Bates clarified in his submissions that it is not the Secretary of State’s case that the First-tier’s decision is perverse. Absent a perversity challenge it is difficult to see in what way other cases, on other facts, might be relevant. Insofar as the grounds suggest that features of the case such as NH’s strong bond with his mother were “ordinary” and not therefore capable of meeting the high test applicable here, it is of course not the case that the Tribunal looked to one such “commonplace” factor in allowing the appeal. The whole point is that it assessed all of the evidence in the round, and found the features identified above to cumulatively meet the “very compelling” threshold. The third of the Secretary of State’s grounds is not therefore made out.
25. I return to the first ground: the Tribunal plainly made a mistake when it referred to the length of sentence one needs to receive before engaging the automatic deportation provisions. It is of course the case that Tribunals can slip up, make mistakes of fact, or even appear to misdirect themselves, without materially erring: see most recently Alam and Anr [2023] EWCA Civ 30 [at 117]. Here the mistake does not appear to be a typographical error. I would agree with the parties that the Tribunal may have been conflating s72 (“serious criminal”) with s32 (“foreign criminal”) but having had regard to the decision overall I am not satisfied that the error can have been material. That is because the length of sentence was simply one factor among many, and there is no indication that it was one that attracted a particularly significant weight. Certainly if I were remaking the decision today, the length of sentence is not something I would attach any weight to at all: the other factors that I have summarised would in my view surmount the threshold. It should be noted that the Competent Authority has now issued a Conclusive Grounds decision confirming that NH has been a victim of trafficking, as found by the First-tier Tribunal, and that this was the context in which the index offence was committed.
26. The Secretary of State’s appeal is therefore dismissed.
NH’S Appeal
27. In his cross appeal NH has permission to challenge the First-tier Tribunal’s decision to dismiss the appeal on Article 8 grounds ‘under the rules’, in particular he submits the Tribunal to have erred in law when it concluded that there were not very significant obstacles to his integration in Somalia. He further challenges the decisions to dismiss the appeal with reference to Articles 3 and 4 ECHR. As Ms Short acknowledged before me, these three strands of NH’s case all turn on the same factual matrix: will he be so vulnerable on return to Somalia that there is a real risk that he could fall into destitution and/or fall victim to trafficking again?
28. There was one simple reason that the Tribunal rejected all of these arguments. Although it accepted that NH had been vulnerable in the UK, he had PTSD and had not been to Somalia since he was a baby, it found that all of that could be mitigated by the presence there of the man identified as MAH. This gentleman, although not directly known to NH, had been sufficiently close to the family to travel to Mogadishu in 2019 and sit outside the airport waiting for NH to come through. He had done so at the behest of NH’s uncle in the UK. NH attempted to deal with this difficulty by telling the Tribunal that he believed MAH to be dead; he also said that he was now estranged from his uncle. His mother, on the other hand, denied being aware that MAH had died; she believed him to be living in the north of Somalia. Given the contradictions in the evidence, and perhaps the obvious advantage to NH is denying that any support would today be coming from MAH, the Tribunal rejected all of that and found that MAH would be as willing today as he was back then to help NH out. He was the support network that would prevent NH falling into destitution, or being subject to trafficking.
29. Ms Short accepts that MAH did come to collect NH during the attempted deportation in 2019. She submits however that it was irrational for the Tribunal to extrapolate from that the notion that this man would be willing to provide NH with accommodation, food, connections, references etc to help him to rebuild his life. The difficulty with that submission is that the evidence about Somali culture is that there is a strong sense of community solidarity, clan or family cohesion, and that people will do just that. See for instance OA (Somalia) Somalia CG [2022] UKUT 00033 (IAC) at headnote paragraph 5:
Somali culture is such that family and social links are, in general, retained between the diaspora and those living in Somalia. Somali family networks are very extensive and the social ties between different branches of the family are very tight. A returnee with family and diaspora links in this country will be unlikely to be more than a small number of degrees of separation away from establishing contact with a member of their clan, or extended family, in Mogadishu through friends of friends, if not through direct contact.
30. I am not satisfied that there was any irrationality in the Tribunal’s findings that MAH would assist NH if he returned to Somalia today. It therefore follows that NH’s grounds of appeal against the First-tier Tribunal’s decision are not made out and his appeal is dismissed.
Decisions
31. The appeal of the Secretary of State is dismissed: the First-tier Tribunal’s decision is upheld.
32. The appeal of NH is dismissed: the First-tier Tribunal’s decision is upheld.
33. There is an order for anonymity, made because NH is a victim of trafficking.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
24th March 2023