Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00110/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14th March 2017
On 11th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Z M S
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Michael Murphy (Counsel)
For the Respondent: Ms Ashika Figiwala (HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Devittie promulgated on 17th November 2016, following a hearing at Taylor House on 12th October 2016. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a male, a citizen of Somalia, who was born on 23rd June 1981. He appealed against the decision of the Respondent Secretary of State dated 22nd December 2015 refusing his application for asylum and humanitarian protection on the basis of his membership of an ethnic minority group in that he belonged to the Benadiri clan.
The Appellant’s Claim
3. The Appellant’s claim is that he fears persecution from the radical Islamist group Al Shabab, because he is a member of a minority clan known as the Benadiri, and in 1996 his father and brother were kidnapped by the militia from the Hawiye, and they refused to give them money. In 2008 he himself was beaten by the Hawiye clan. He has lived illegally in Saudi Arabia between 2008 and 2015 working in a carwash.
The Judge’s Findings
4. The judge accepted that the Appellant was from a minority clan, but found that he was able to re-establish himself in Mogadishu with financial help from his family abroad, members of which lived in the United Kingdom.
Grounds of Application
5. The grounds of application state that the Appellant was living with his mother in the UK and she has renal failure, and depends upon the Appellant to help her with personal care. He has his own wife and children in Saudi Arabia. The judge had held that the consequences of removal would be outweighed by the public interest in immigration control, and not least because the Appellant had a wife and children in another country, was irrational because the position of the wife and children in Saudi Arabia bore little relevance to the “public interest” requirements of immigration control as far as the UK was concerned. The judge should have balanced instead the needs of the Appellant’s terminally ill mother against the immigration control.
Submissions
6. At the hearing before me on 14th March 2017, Mr Murphy flagged up the evidence as set out in the determination and held that the judge had failed to give proper reasons as mandated by the Tribunal decision in MK (Duty to give reasons) Pakistan [2013] UKUT 00641. He drew my attention to the contradictions in the judge’s conclusions reached at paragraph 8(iii), at paragraph 9, at paragraph 13(vii) and at paragraph 14(iii). Finally, the judge dealt with the Article 8 claim at paragraph 15, and whilst recognising that the Appellant lived with his parents and assists the mother with her care, wrongly concluded that return to Saudi Arabia was feasible.
7. For her part, Ms Figiwala submitted that this appeal was nothing more than a disagreement with the findings of the judge. The judge was right at paragraph 15 to say that the Appellant had now acquired enough experience by living abroad in various countries so as to be able to make a contribution in his own country. He was also right in concluding that there were other family members who could look after his aged mother and father. The Appellant’s asylum claim had failed. He was dependent now upon the Article 8 claim for success and the judge was not in error in saying that other family members living in Saudi Arabia, such as his own wife and child, were matters that he could properly take into consideration. The judge has properly directed himself in relation to financial support. He had referred to the country guidance case of MOJ (Return to Mogadishu) Somalia CG [2014] UKUT 00442 and concluded he was not at real likelihood of serious harm in Somalia (see paragraph 13).
8. In reply, Mr Murphy submitted that this could not be described as a disagreement with the decision of the judge because it was an essential point of law, namely, that the judge could not consider the position of the Appellant’s wife and child living in Saudi Arabia, to be relevant to the “public interest” consideration in favour of immigration control in this country, because what mattered to the taxpayer in this country and to the government was the public interest in immigration control, rather than the fact that the Appellant could live with his wife and child in Saudi Arabia.
Error of Law
9. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows.
10. First, the judge concludes that, given that the Appellant’s family, including his parents and siblings, are now settled in the UK that, “he would face some difficulty in settling down in Mogadishu”. He also held that, “I am satisfied that his family are in the UK presently without the means to provide him with any meaningful support if he were to return to Somalia” (paragraph 14(iii)). In the circumstances, the judge fell into error in concluding that, “it is equally clear, however, that his brothers, who … do have the capacity, if they were so minded, to earn an extra income in order to be able to provide the Appellant some support” (paragraph 14(iii).
11. This is for two reasons. First, because there is no evidence that the brothers would be so minded to do. Second, the Appellant’s brother did give evidence, and adopted his witness statement, and the judge recorded this as, “he is on public benefits and works as a part-time barber” (see paragraph 10). Not only does the evidence show that he lacked capacity at the time to send him monies in Mogadishu, but, as Mr Murphy submitted, there is a failure here to record the fact that the witness was actually asked whether he would be able to send monies to the Appellant in Somalia and categorically said that he would not wish to do so.
12. Second, the position of the Appellant’s mother (for whom he cares) by way of providing her with clothing, massaging, cooking, and other day-to-day help and care, has not been properly analysed in relation to the Appellant by way of a balancing exercise with respect to the proportionality of the eventual decision. This is clear from the fact that the judge records that,
“I accept that the Appellant lives with his parents and that he assists in taking care of his mother. The medical evidence clearly shows that his mother has a terminal illness. The emotional need for the Appellant to be with his mother at such times is real and is a factor to which I attach significant weight” (paragraph 15).
13. In the same breath, however, the judge, as against such a vitally important finding, then went on to say that,
“It must be said however that the Appellant also has a wife and children in Saudi Arabia, who would be looking to him for support and comfort. I do not therefore consider that the consequences of his removal would be sufficiently serious to outweigh the public interest in the maintenance of effective immigration control” (paragraph 15).
14. Whilst the concept of a “public interest” is a wide tapestry, every tapestry has a border and the public interest in immigration control in this country, does not stretch to the presence of the Appellant’s wife and child in Saudi Arabia. The relevant balancing exercise should have been undertaken solely in the context of the “emotional need for the Appellant to be with his mother”, as well as the manner in which he is “taking care of his mother”, as against the public interest in immigration control. The reference in the same breath to the Appellant’s family in Saudi Arabia has contaminated the balancing exercise, as Mr Murphy submitted, because it has regard to an extraneous matter where it is entirely irrelevant to the public interest in favour of immigration control, and was bound to lead to a misleading decision on the proportionality of the refusal of the Article 8 claim.
15. In the circumstances, with the error of law having been found, the proper course of action is for this matter to be remitted back to a First-tier Tribunal Judge other than Judge Devittie so that this particular matter can be properly analysed in the context of the Appellant’s relationship with his family and the mother and father’s relationship with him, as against the public interest in immigration control.

Notice of Decision
16. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed to the extent that it is remitted back to the First-tier Tribunal, to be determined by a judge other than Judge Devittie under Practice Statement 7.2(b) in that the nature of the fact-finding exercise has been such as to require this matter to be reheard again.
17. An anonymity direction is made.

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

Deputy Upper Tribunal Judge Juss 7th April 2017