Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber Appeal Number: PA/02734/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 16 June 2016
On 13 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

m m N
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Mr Ti, Kesar & Co Solicitors
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS

1. The Respondent refused the Appellant's claim for asylum in the United Kingdom and his application for leave to remain on human rights grounds on 4 November 2015. The Appellant appealed against this decision under s 82 (1) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) on the grounds that he was a refugee and that his removal would breach Articles 3 and 8 of the European Convention on Human Rights (ECHR). His appeal was heard and dismissed by First-tier Tribunal Judge Nightingale in a decision promulgated on 11 April 2016. She dismissed the appeal on asylum, humanitarian protection and human rights grounds.

2. The Appellant sought permission to appeal against this decision which was granted by First-tier Tribunal Judge Ransley on 5 May 2016. Permission was granted on the basis that the following grounds were arguable:

(i) The Judge failed to give reasons for finding that the Appellant had legal residence status in South Africa;
(ii) When assessing the reasonableness of the Appellant's wife continuing family life with him in Somalia the Judge failed to take into account her evidence that it would be too dangerous for her and her children to live in Somalia;
(iii) When assessing whether it was reasonable to expect the Appellant's children to leave the UK the Judge failed to take into account (a) the risk of serious harm in Mogadishu and South Africa; and (b) the benefits of the children accessing education and healthcare in the UK long term;
(iv) The Judge failed to give reasons for finding that the Appellant had made a baseless asylum claim to circumvent the Immigration Rules because he was unable to meet the financial requirements; and
(v) Failed to give reasons for finding that there were no obstacles to the Appellant reintegrating into South Africa or Somalia.

3. The Respondent served a response to the grounds of appeal under Rule 24 dated 24 May 2016. The response argues that the First-tier Tribunal found that the Appellant was not at risk and had considered his ability to live in South Africa in some detail and came to the correct conclusion that there was no well-founded fear either in Somalia or South Africa. The best interests of the children were considered and there was found to be a benefit to growing up with their mother and father in Mogadishu or South Africa. The First-tier Tribunal found that the Appellant did not meet the requirements of the Immigration Rules for leave to remain as a partner and had failed to establish paragraph EX.1 applied. The First-tier Tribunal directed itself properly.

The Hearing

4. At the hearing I heard submissions from both representatives. Mr Ti relied on his skeleton argument. He submitted that the first ground of appeal related to the legal right of residence in South Africa. The Judge started by saying she did not accept that he had refugee status and she said that she was prepared to accept that he had some form of legal residence and she moved on to a firm finding that he had legal residence. If she found that there was no status then there were no grounds to find that he had legal residence. There were no obvious pointers as to how he would have obtained status. Her finding of residence was unsubstantiated. If he had no legal residence the question of whether he could be returned there was an issue.

5. In relation to Ground 2 in considering insurmountable obstacles the Judge said that at no point in the course of the Appellant's wife's evidence was fear mentioned. The Appellant's wife said in both witness statements that she felt it was too dangerous for her and her children to live in Somalia. The Country of Origin information report commented on the high level of gender based violence at pages 7 to 10 of the objective evidence and it was clear that women and girls were at high risk of gender-based violence. They would be exposed to those dangers. It was a very significant error of fact to the extent that it should be deemed to be an error of law.

6. Ground 3 concerned the reasonableness of leaving the United Kingdom under paragraph EX.1. When considering the various factors the Judge did not consider the risk of physical harm to the children. The Upper Tribunal in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) held that there was not a risk of serious harm such that the Appellant would be entitled to rely on Article 15 (c) of the Qualification Directive but there would still be a very significant level of danger. In MOJ at paragraph 385 it was said that there were Al Shabab attacks on a daily basis and a probability of collateral damage. The children would be exposed to this risk potentially until the age of 18 and beyond. If there were three children then the weight should be greater. The eldest child was 8 years old at the date of the hearing. In relation to the children the Judge should have taken into consideration the psychological impact of living in fear of such violence. The eldest child would be exposed to the high levels of sexual violence in Somalia. By failing to looking at these factors her finding that it would be reasonable for them to live there was unsupportable. Her finding was that the Appellant was able to go back and that there was sufficient protection. In this very case the Appellant had experienced several episodes of xenophobic attacks in South Africa and yet there was a finding of sufficient protection. He was not challenging that there was sufficient protection but there still could be a high level of risk to the children. The Judge had failed to look at the relevant factors.

7. With regard to Ground 4 it was argued that when the Judge looked at the specific factors the weight that she gave them was unreasonable. At paragraph 79 she said the children would have the benefit of growing up amongst the culture of father and mother and there would be long term gains. Firstly, in making that conclusion, she failed to take into account that they would they would lose the benefit of living in British culture. She also failed to appreciate that if they remained here they would not be deprived of Somali culture. They would be exposed here. The same could not be said about British culture there. In South Africa there would be no gains.

8. With regard to Ground 5 the Judge concluded that the Appellant had made an abusive claim in an attempt to meet the Rules. It was a completely unreasonable conclusion that the claim was fabricated and unsupported by evidence. He came from South Africa and claimed asylum against being returned to South Africa. The Judge noted the clashes in South Africa. Given that kind of evidence it seemed unreasonable for her to characterise his claim as baseless. At the very basic level one needed to consider whether the article 15 (c) threshold had been reached. Even in MOJ there was a recognition that there was a high level of violence. This was material because the Judge made it very clear that there was an objection to this unethical behaviour. The Judge also said at Ground 6 that there was an attempt to circumvent the Immigration Rules. There was no link between the asylum application and the maintenance requirement. If he succeeded it was on the basis that he needed protection. If he failed it was irrational. There was a legal way to meet the requirements in showing that there were insurmountable obstacles.

9. The final ground was in relation to the right to a private life. At paragraph 83 of the First-tier Tribunal decision she found he did not meet the requirements. At no point was there any consideration of obstacles to return to South Africa where there was a high degree of xenophobia.

10. Ms Isherwood submitted that there were material facts which were important to consider. Firstly, regarding Somalia, at paragraph 13 of the decision the Judge noted that the Appellant was a member of a majority clan originating from Mogadishu and he had family in Somalia and he was supporting them. Regarding circumventing rules, it was clear from paragraph 28 that the Judge heard oral evidence that they found out about the income requirement. The Presenting Officer made a submission that they were ready to abuse the system to get into the country. The challenge of circumventing the Rules did stand up because of the evidence. The Appellant was supporting his family and he managed to start his own business in South Africa. Ground 1 concerned the Appellant's South African status. In the refusal letter it was accepted that he had status in South Africa. The Judge found at paragraph 45 that the Appellant had done nothing concerning clarifying his status. The burden of proof was on him. The Judge was entitled to find that nothing had been done. She was entitled to find that he was not a refugee but may have had some legal leave. Then for completeness she looked at the applicable law.

11. With regard to paragraph EX.1 (a) (ii), she concluded that it would not be unreasonable to expect the children to leave the UK. From paragraph 60 the Appellant was not found a credible witness and the Judge did not accept the claim of the historical fear in Mogadishu. The Judge referred to one paragraph concerning violence in MOJ. The Appellant had lots of family in Somalia. There was no basis for the appeal to be allowed. She looked at the historical claim, said it no longer existed and did not accept it anyway. The Judge gave a number of reasons for not accepting this account. At paragraph 62 she noted the improved situation there. The Judge considered MOJ and chose not to depart from it. She did not accept that the family would not be able to offer him accommodation and acknowledged the situation in the UK. She disregarded the submission regarding IDP camps. At paragraph 65 she noted that there was no documentation showing he had ever been recognised as a refugee. The Judge was giving reasons at that point. The Appellant's evidence had not been accepted. He could have obtained evidence of refugee status. At paragraph 66 she accepted he had lawful residence and looked both at South Africa and Somalia. At 67 she took account of the random attacks. The attacks were not widespread and there was reasoning. It was not the case that she did not consider the evidence. In addition submissions were made that the Appellant was attacked but at paragraph 68 he reported one attack. She found there was sufficient protection and the appropriate tests were not reached. At paragraph 69 internal relocation was considered. There were no incidents of violence occurring. At paragraph 70 she did accept that the Appellant met suitability and that eligibility criteria. At 74 she noted that his wife was from Somalia. It was not enough that the wife thought it was dangerous. At 75 her circumstances were considered. There was no evidence from the step-daughter's father. The burden of proof was on the Appellant and nothing was provided. It had not been established that she had ongoing contact with her father. The Judge acknowledged there was extended family here. The wife did not mention personal fear in course of her evidence. The fear was based on reduced circumstances. The Judge understood the concerns but found it amounted to a preference. At paragraph 78 she considered the children and within the first line placed weight on their British Citizenship. She treated it as a primary consideration and there was nothing wrong with her approach. She could give it what weight was proper. It was not unreasonable for them to go with their parents. The Judge acknowledged that children may find themselves in reduced circumstances and the Judge acknowledged the benefits. There was extended parental family. All alternatives were considered. There were no welfare reports. No additional findings were required and everything had been considered.

12. Mr Ti said that the Respondent may have misunderstood the arguments. The plans which were made by the Appellant and his wife were in 2013 when she returned from South Africa. Riots happened in 2015 and there were legitimate reasons for the change of approach. It was a proper route for them to rely on paragraph EX.1. There was no unethical behaviour and the conclusion was unreasonable. He was not challenging the decision on asylum grounds but that was a basis for the proportionality decision. The finding was baseless and not supported. The problem was with the fact that she considered the positive factors were outweighed. She failed to recognise that gains were balanced out by the losses. The gains were neutralised.

Discussion and Findings

13. The first ground asserts that the First-tier Tribunal either failed to give adequate reasons for finding that the Appellant had legal residence in South Africa in the light of her finding that he did not have refugee status or, in the alternative, that the finding that he had legal residence was perverse and not supported by the evidence.

14. The Appellant's claimed country of nationality was Somalia and the Respondent accepted that this was so. The First-tier Tribunal considered firstly, whether the Appellant had a well-founded fear of persecution on return to Somalia and concluded that he had not. There has been no challenge by the Appellant to that finding. It was the Appellant's claim to have been granted refugee status in South Africa and to have lived there since 2008. The Respondent at the hearing did not accept that the Appellant had refugee status in South Africa. The First-tier Tribunal found, at paragraph 65 of the decision, that he did not have refugee status in South Africa but accepted, at paragraph 66, that he had some form of legal residency there and that he had permission to reside there. She accepted that it was his country of habitual residence and stated that since she had found that he had no well-founded fear of return to Somalia, the matter of whether he or not he was entitled to refugee status from South Africa was academic.

15. Having found that the Appellant did not have a well-founded fear of persecution in Somalia, his country of nationality, the Judge was not required to consider whether he had a well-founded fear of persecution in South Africa because he was neither stateless nor had dual nationality. Even if her findings in relation to the legality of his residence in South Africa were perverse or inadequately reasoned it would not therefore be material. However, I find that the findings were both open to her on the evidence and sufficiently reasoned. It is clear from the reasoning in paragraph 67 of the decision that she accepted the Appellant's evidence that he was able to live and start his own business in South Africa, albeit not as a refugee, and it followed rationally from these findings that he had some form of legal residence. She was not required to give reasons for these reasons.

16. The second ground relates to the reasonableness of the Appellant's wife leaving the United Kingdom. The Appellant had argued that paragraph EX.1 (b) applied and there were insurmountable obstacles to family life continuing with his wife outside the UK. The grounds assert that the First-tier Tribunal erred in stating that the Appellant's wife did not mention any personal fear of returning to Somalia in the course of her evidence because she had stated in her witness statements of 7 October 2015 and 8 March 2016 that it would be too dangerous for her and her children to live in Somalia. It is further said that there was evidence of high levels of gender based violence and had the Judge taken this into account she may have reached a different conclusion on whether there were insurmountable obstacles.

17. The First-tier Tribunal considered whether there were insurmountable obstacles to family life continuing with his wife in Somalia at paragraphs 74 to 76 of the decision. At paragraph 76 she stated that the Appellant's wife "did not mention any personal fear of returning to Somalia". The Appellant's wife's oral evidence is recorded at paragraphs 33 to 35 of the decision. At paragraph 35 of the decision she is recorded as saying that she could not consider going to South Africa or Somalia as it was not safe and in terms of the education of her children it was not the place to go. In her witness statement dated 8 March 2015 she stated that she thought it was too dangerous to go to live in Somalia.

18. I do not consider that the First-tier Tribunal either failed to take into account material evidence or reached a perverse finding in relation to whether there were insurmountable obstacles. The Appellant's wife's evidence was that she considered the country situation was too dangerous not that she had a fear of return for reasons that related to her person. The Judge's finding was in accordance with the evidence. Further, her assessment of whether there were insurmountable obstacles has to be considered in the context of her findings as a whole. At paragraph 63, following the case of MOJ, she noted the improved situation in Mogadishu. She also noted that there were random attacks of violence. She found at paragraph 76 that the Appellant, a majority clan member, would be returning to his family in Somalia who were close friends with the Appellant's wife's family. She found that she was a fluent Somali speaker and had given up her external private life to raise children and whilst there would be doubtless a period of readjustment and initial financial hardship that the obstacles were not insurmountable. Her findings were sufficiently reasoned and took into account relevant evidence. She was not required to refer to every piece of the Appellant's wife's evidence and in the context of the circumstances of her return with her husband was entitled to come to the conclusion that she did.

19. The third ground challenges the First-tier Tribunal's finding that it was reasonable for the Appellant's children to leave the UK. It is argued that the Judge failed to take into account that there would be a risk of serious harm to the children due to the level of violence in Mogadishu. It is also argued that there was significant violence against foreigners in South Africa and that the children would be exposed to that risk.

20. I do not consider that the First-tier Tribunal Judge either erred in her approach to the assessment of reasonableness, made findings that were not open to her on the facts or failed to take into account material considerations. The parties' submissions are recorded in full and at paragraph 51 she notes that the Appellant submitted that in either Somalia or South Africa the children would face physical insecurity and a lack of education or health care. She did not specifically refer within the assessment of reasonableness to the level of violence in Mogadishu. However, she rejected the submission that there would be risk to the Appellant at paragraph 63 of the decision taking full account of the reports before her which she noted were dated February 2016, found that he had family and was a member of a majority clan. She rejected as fanciful the submission that he would end up in an IDP camp and found that his family in Mogadishu would make room for him. Her findings in relation to reasonableness have to be seen in this context. She noted at paragraph 81 that there were no welfare reports before her and nothing from an independent social worker, educationalist or suitably qualified person which indicated that there would be any negative impact upon the welfare of the children in removing them. Whilst she had before her background reports in relation to sexual violence there was no evidence before her that the children would be at risk of such violence. She had specifically found that the Appellant would not be a displaced person and there was no evidence before her to suggest that the children were at risk. Similarly whilst there were background reports in relation to xenophobic violence in South Africa, she found at paragraph 67 that any attack on the Appellant was random and that he was able to move elsewhere in South Africa. There was no error in her conclusion that there was no evidence before her to indicate that the children would suffer adversely if raised by their parents in South Africa.

21. It is argued at Ground 4 that the First-tier Tribunal's finding that there were many long term gains to the children living outside the United Kingdom to balance the loss of the material welfare of living in the United Kingdom was irrational and not based on any apparent reasoning. It is contended that there were no gains to balance the loss of British education, healthcare and public benefits.

22. There can be no question, in my estimation, that the First-tier Tribunal was fully aware of the weight to be given to British Citizenship. She expressly stated at paragraph 78 that she gave considerable weight to that citizenship with its attendant rights and privileges. She accepted that their best interests were to remain in the United Kingdom. However, she found that those best interests were outweighed and give a number of reasons for so finding, all of which were open to her on the evidence. She was entitled to take account of the extended paternal family in Somalia, the young age of the children, the caring environment provided by their parents, the fact that their mother was from Somalia and their father lived there until 2008 and the absence of evidence that removing the children from the UK would have a negative impact. She was also entitled to take the conduct of the parents into account (MA (Pakistan) and Others [2016] EWCA Civ 705). Her finding that there would be gains for the children in living either in Somalia or South Africa was neither perverse or inadequately reasoned, although consideration of the reasonableness of return to South Africa was not required strictly required in the light of her findings.

23. Ground 5 challenges the First-tier Tribunal's finding that the Appellant had made a baseless asylum claim in order to circumvent the Immigration Rules. The Appellant contends that the First-tier Tribunal made an irrational or inadequately reasoned finding. Secondly, it is argued that the Appellant was not trying to circumvent the Immigration Rules as he relied upon paragraph EX.1. It is further asserted that the description of the asylum claim as baseless is unreasonable and the allegation that it is fabricated is unsubstantiated and unfair. It is argued that the Appellant claimed asylum because of what happened to him in South Africa and that the First-tier Tribunal noted that there were attacks on foreign nationals. Further, in the light of the level of violence in Mogadishu it was unreasonable to find that the claim was baseless.

24. At paragraph 80 of the decision the First-tier Tribunal found that there was a strong indication on the evidence before her that the Appellant had decided to make a baseless asylum claim to circumvent the Immigration Rules when the couple became aware that they could not live together in the United Kingdom unless they could afford to support themselves. She found there was considerable merit in the Respondent's submissions that the family intended to live together in the UK knowing full well that they could not meet the maintenance requirements of the Rules.

25. I find that this conclusion was entirely open to her on the evidence. The Appellant married his wife by proxy in 2013 when she was in the United Kingdom and he was in South Africa. She then went to South Africa and spent five months there during which she conceived their child (paragraph 6 of the decision). According to his wife's evidence recorded at paragraph 34 of the decision they had decided that she would go to see him and that she would then sponsor him to join her in the United Kingdom. However, they realised subsequently that they had to have a certain level of income and there was a language test and these became stumbling blocks. Also they felt that South Africa was not a safe place. The Appellant then entered the United Kingdom clandestinely in May 2015 with the assistance of an agent. The First-tier Tribunal heard evidence from the Appellant and his wife and assessed their credibility. She found his claims to be in need of international protection to be without merit. In the circumstances it was open to her to find that he came to the UK clandestinely in order to avoid the entry clearance requirements with regard to maintenance. The finding was neither perverse nor inadequately reasoned.

26. The final ground asserts that the First-tier Tribunal gave no consideration in the decision to whether there were obstacles to the Appellant's re-integration into South Africa or Somalia and that she failed to explain how she arrived at this assessment. Further, in relation to South Africa, she failed to explain how xenophobia was not an obstacle to integration.

27. The First-tier Tribunal specifically considered paragraph 276 ADE of the Immigration Rules at paragraph 83 of the decision. She did not accept that there were any obstacles, significant or otherwise to his reintegration into Somalia or South Africa. She had already found that the Appellant did not have a well-founded fear of persecution in either country, that he could move to avoid incidents of xenophobia in South Africa in order to be safe and that he had already rented a room for his wife in the past in a good area in order for her to reside safely. The Judge had also found that there were no insurmountable obstacles to family life continuing in either country and that they would have the support of family in Somalia. She had also found that it was reasonable for the children to live there. In the circumstances she was not required to make further findings of fact to justify her conclusion that there were no very significant obstacles to his integration.

Conclusions:
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision.

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 his 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 L J Murray 13 September 2016