Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02846/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 25 January 2017
On 09 February 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

BM
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Brown, instructed by Asylum Aid
For the Respondent: Mrs Pettersen, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, BM, was born in 1988 and is a citizen of Somalia. On 4 July 2007, a decision was made to deport the appellant under Section 5(1) of the Immigration Act 1971. The appellant subsequently made an application for protection and human rights which was refused by the respondent on 26 February 2016. The appellant appealed against that decision to the First-tier Tribunal (Judge Rodger) which, in a decision promulgated on 1 November 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The four grounds of appeal which were drafted by Ms Brown of Counsel who appeared both before the First-tier Tribunal and the Upper Tribunal. I shall deal with the grounds of appeal in the order in which Ms Brown presented them at the Upper Tribunal hearing.
"Very Compelling Factors"; "A Complete Code"
3. The appellant's fourth ground of appeal challenges the judge's finding that there were "no very compelling factors" justifying a grant of leave to remain outside the Rules under Article 8 ECHR. Attention was drawn to a number of factors but in particular the respondent's delay (some eight years) in making a decision on the appellant's fresh claim (see EB (Kosovo) [2008] UKHL 41). Ms Brown sought to enlarge upon the ground of appeal in the light of the fact that, since the grounds were drafted, the Supreme Court has delivered its judgment in Hesham Ali [2016] UKSC 60. The appellant is the subject to a deportation order (on 12 January 2007 he was convicted of the possession of a false identity document and sentenced to twelve months' imprisonment). Several times in her decision, the judge refers to the Immigration Rules as regards deportation constituting "a complete code for the application of Article 8" (see, for example, [27]). This approach, submitted Ms Brown, was inconsistent with Hesham Ali which found that the Court of Appeal in MF (Nigeria) [2013] EWCA Civ 1122 had incorrectly characterised the Immigration Rules as a complete code in respect of deportations. She submitted that, given that the judge had followed the wrong approach (albeit before the judgment in Hesham Ali had been published), the decision should be set aside.
4. It is correct that the judge has referred to the Immigration Rules as providing a complete code, most significantly in her analysis at [36]:
The matter under consideration as part of a deportation appeal needs to be determined by reference to the Immigration Rules, which provide a complete code for deportation appeals as confirmed by the recent case law.
5. The question remains, however, whether the judge's error has materially affected the outcome of the appeal. Mrs Pettersen, for the respondent, submitted that it had not done so. I agree with Mrs Pettersen. As regards an analysis of the facts of the appeal, Judge Rodgers' decision is exemplary. She has examined in considerable detail the circumstances of the appellant's family life (such as it is), his private life and his immigration history (including his attempts to seek asylum on the basis that he was a Christian and also a homosexual, claims dismissed by Judge Rodger and, in an earlier determination dating from 2007, by Designated Judge Olson). Having considered the application of the Immigration Rules, Judge Rodger went on to find at [115]:
On my consideration of the evidence and having considered all the matters raised by the appellant and on assessing all the circumstances individually and also assessing them cumulatively I find that there are no very compelling circumstances in terms of the case law I have considered which would outweigh the significant public interest in the appellant's deportation.
6. I do not find that the fact that the law has now been clarified by the Supreme Court in Hesham Ali materially affects in any way the analysis of Judge Rodger or, indeed, the outcome of the appeal before her. The recent judgment of the Court of Appeal in EJA [2017] EWCA Civ 10 has added useful guidance concerning the application of the principles of Hesham Ali to cases involving deportation. At [16], the Court of Appeal observed:
The central issue in the Hashem Ali case was whether the general rule identified by Lord Dyson in paragraph 43 of his judgment was correct. Lord Reed, with whom Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes and Lord Thomas agreed, confirmed at paragraph 38 of his judgment, as did Lord Wilson expressly at paragraphs 66 and 81, that it was:
"The implication of the new rules is that rules 399 and 399A identify particular categories of case in which the Secretary of State accepts that the public interest in the deportation of the offender is outweighed under article 8 by countervailing factors. Cases not covered by those rules (that is to say, foreign offenders who have received sentences of at least four years, or who have received sentences of between 12 months and four years but whose private or family life does not meet the requirements of rules 399 and 399A) will be dealt with on the basis that great weight should generally be given to the public interest in the deportation of such offenders, but that it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in SS (Nigeria). The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State. The Strasbourg jurisprudence indicates relevant factors to consider, and rules 399 and 399A provide an indication of the sorts of matters which the Secretary of State regards as very compelling. As explained at para 26 above, they can include factors bearing on the weight of the public interest in the deportation of the particular offender, such as his conduct since the offence was committed, as well as factors relating to his private or family life. Cases falling within the scope of section 32 of the 2007 Act in which the public interest in deportation is outweighed, other than those specified in the new rules themselves, are likely to be a very small minority (particularly in non-settled cases). They need not necessarily involve any circumstance which is exceptional in the sense of being extraordinary (as counsel for the Secretary of State accepted, consistently with Huang [2007] 2 AC 167, para 20), but they can be said to involve "exceptional circumstances" in the sense that they involve a departure from the general rule."
7. The Court of Appeal noted that the "complete code" argument had been put before the Supreme Court;
The issue of whether the rules were a "complete code" was argued before the Supreme Court. Lord Reed explained (paragraphs 17 and 53) that save in cases where an appeal is brought on the basis that the decision of the Secretary of State was not in accordance with the rules, those rules are not a complete code which, as a matter of law, governed the determination of appeals. He continued:
"The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. In particular, tribunals should accord respect to the Secretary of State's assessment in the strength of the public interest in the deportation of foreign offenders, and also consider all factors relevant to the specific case before them ? It remains for them to judge whether, on the facts as they have found them, and giving due weight to the public interest in deportation in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate."
8. However, as the court observed, it is "abundantly clear that Hesham Ali has not lowered the significant hurdle which must be overcome by a foreign criminal to succeed in demonstrating that it would be disproportionate to deport him from the United Kingdom" [19]. I find that such is the detail of the analysis and assessment of facts in Judge Rodgers' decision it is simply not possible to argue that simply because she may have relied upon pre-Hesham Ali jurisprudence concerning a "complete code" that her detailed analysis is in some way fatally flawed. It is not. In essence, the judge has correctly applied the Immigration Rules and, having done so, has failed to identify any compelling circumstance which would lead to a grant of leave to remain outside the Rules.
Failure to Apply Relevant Law and Perversity
9. The appellant asserts that the judge has failed to apply the country guidance provided by MOJ (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). The appellant relies on MOJ at [407(h)] and [408]:
407 (h) If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:
(i) circumstances in Mogadishu before departure;
(ii) length of absence from Mogadishu;
(iii) family or clan associations to call upon in Mogadishu;
(iv) access to financial resources;
(v) prospects of securing a livelihood, whether that be employment or self employment;
(vi) availability of remittances from abroad;
(vii) means of support during the time spent in the United Kingdom;
(viii) why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.
408 It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms.
10. The appellant claims that the previous Tribunal (Judge Olson) had accepted that he had been in the United Kingdom since the age of 5. I note that the previous determination did not accept in terms that the appellant had no family living in Somalia, a point now accepted by Ms Brown. The appellant says that it is perverse that the judge found that the appellant would be able to survive economically and the fact that he had carried out motorcycle engineering training whilst in prison in 2007 would not assist him. The position facing relatively uneducated Somali returnees like himself is grim.
11. I do not accept that the judge failed, as the appellant asserts, to engage with the expert evidence of Dr Mullen. It is clear that she did so not least at [90]:
I [have considered] the country expert report relied upon by Dr Mullen but I am not satisfied the appellant has been able to prove that he is at risk of suffering serious harm or becoming destitute on return to Mogadishu or being in living conditions that would be adverse to his human rights under Articles 2 and 3. The appellant's credibility has not been established and I find that he has been able to raise the funds to pay for his legal passage to the UK if not being accepted and that he was in a relationship with [K] and was trafficked in order to pay for such passage. Therefore whilst the appellant may say that he has no family or contacts or opportunities available to him in Mogadishu I do not accept the reliability of the same. He may have family or contacts in Mogadishu but even if he does not the appellant is likely to be able to call upon his majority clan for support and opportunities on return to Mogadishu. He is a resourceful man who has built a new life in the UK. He has trained in the UK. Whilst is was said that he is not an educated man he has been able to complete some mechanical training in the UK and it is his case that he cares for children on a daily basis and assists his children with their homework. I do not accept that he is entirely without skills or that he will be of any real risk of being destitute upon return to Mogadishu.
12. In my opinion, the paragraph which I have quoted above contains an adequate analysis of the relevant facts concerning the appellant's return to Mogadishu. The appellant accepts that he is a member of a majority clan, a fact which cannot be ignored when assessing risk on return. Ms Brown in her oral submissions made much of the fact that the appellant did not have family members in Mogadishu who would be able to assist him, a problem which would be greatly accentuated by reason of his having been in the United Kingdom since the age of 5 years. The problem for the appellant, however, is that it is for him to prove his case. Judge Rodger was clearly in no position to make findings as to which family members exactly the appellant may have living in Mogadishu or elsewhere in Somalia but that is not the point. It was for the appellant to prove that he did not have family members, a claim expressly rejected by Judge Rodger who found that the appellant was not a credible witness. Since it has not been established as a fact, the absence of family members cannot, therefore, be a factor in assessing the appellant's risk on return to Mogadishu. Further, the points taken in the grounds regarding the appellant's lack of education are, with respect, little more than disagreement with the judge's findings. The judge did not say that the appellant was highly educated but did find that he was resourceful and had shown in the past an ability to undertake training which could improve his employment prospects. That resourcefulness combined with his majority clan membership was, in the opinion of Judge Rodger, essentially sufficient to indicate that the appellant could return without serious risk. That was not a perverse finding on the evidence and I do not propose to interfere with it.
Conclusions Contrary to the Evidence or Not Based on Evidence
13. The appellant claims to be in a subsisting relationship both with a partner and with minor children. The judge, however, at [99] found:
As regards paragraph 399 [of the Immigration Rules] I did not find the appellant or [N] to be credible and whilst I accept the appellant has fathered two children by [N] and that they were at some stage in a genuine and subsisting relationship, I am not able to accept the appellant is any longer in a genuine and subsisting parental relationship with his children or in a genuine and subsisting relationship with [N].
14. The appellant relies upon a letter from the head teacher of a school attended by the children and noted the appellant's "close contact with his sons and his involvement in their education." Another witness (giving evidence by letter) had noted "an extremely strong bond between [the appellant], [E] and the boys." The report of Ms Redfern had noted that the appellant spent more time with the children than they did with their mother "owing to her university course placement." These items of evidence, the appellant asserts, were not referred to in terms by the judge and undermined her findings as regards the relationships enjoyed by the appellant.
15. I reject that submission. At [100], the judge gave very detailed reasons for doubting the credibility of the evidence which she had heard from the appellant and [N]. The judge did not reject the claim that the appellant had an involvement in his children's lives in their earlier years [101] or that he had some "ongoing contact with the children." She did, however, find that:
The lack of credibility of the appellant and [N] made it difficult to determine the extent of the same and looking at the matter overall and taking into account their inconsistencies regarding important events in the children's lives and their everyday lives I am not satisfied it is such that he has a subsisting parental relationship with the children. [101]
16. It was for the judge to carry out a robust fact-finding exercise and she has done exactly that. The judge had the benefit of hearing oral evidence from the appellant and [N] and it is not for the Upper Tribunal simply to reassess the documentary evidence which was before the judge when it has not had that same opportunity of considering oral testimony. Further, at [102] the judge has given a careful analysis of the documentary evidence including the report of Ms Redfern. The judge has stated that she has considered all the evidence both documentary and oral and I have no reason to doubt her. Once again, the Court of Appeal judgment in EJA is of assistance [27]:
Decisions of tribunals should not become formulaic and rarely benefit from copious citation of authority. Arguments that reduce to the proposition that the F-tT has failed to mention dicta from a series of cases in the Court of Appeal or elsewhere will rarely prosper. Similarly, as Lord Hoffmann said in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, "reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account". He added that an "appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself". Moreover, some principles are so firmly embedded in judicial thinking that they do not need to be recited. For example, it would be surprising to see in every civil judgment a paragraph dealing with the burden and standard of proof; or in every running down action a treatise, however short, on the law of negligence. That said, the reader of any judicial decision must be reassured from its content that the court or tribunal has applied the correct legal test to any question it is deciding.
17. The Court of Appeal in EJA went on to consider the position of an appellant with "routine non-residential contact with two small children" at [30]:
Furthermore, it is clear from its determination that the F-tT did not apply the test of very compelling reasons articulated in MF. The conclusion that routine non-residential contact with two small children by their father, with whom they had never lived, could amount to exceptional circumstances to avoid the automatic deportation dictated by the 2007 Act would neuter completely both the statutory provisions and the Rules. It comes close to suggesting that removing a parent of children with whom he is in contact, and who will remain in the United Kingdom, is in itself an exceptional circumstance which is sufficient to resist deportation on account of its negative impact on family relationships. There must be relatively few cases in which there is a meaningful relationship between a parent and children where deportation of the parent, with consequent physical separation, will not have an adverse impact on the children. The argument accepted by the F-tT would have been even stronger had EA remained in a relationship with the children's mother and intended to live with them on his release from custody. Yet the 2007 Act, the Rules and the test now approved in Hashem Ali all contemplate the deportation of foreign criminals with families in the United Kingdom with whom they are living and to whom they provide emotional and financial support. Furthermore, it is to my mind impossible to accept that the circumstances of M, whether taken individually as the F-tT did, or collectively with the position of the two small boys, could sound as very compelling reasons for the purposes of article 8.
18. In the light of the entirely sound findings of fact which the judge made in respect of the appellant's relationships with his partner and children and in light of the clear guidance now provided by cases such as EJA, Judge Rodger was left with no alternative but to find that there were no exceptional or compelling circumstances on the facts of this case. I say that having proper regard for all the evidence including that which supported a different view of the nature of the relationships from that found by Judge Rodger. Indeed, the judge in her analysis stated at [116]:
Even if the appellant did have a genuine and subsisting relationship with his children and a subsisting relationship with [N] I am not satisfied there is anything exceptional or very compelling in the likely reactions of the children or [N] and effects on them such that it would tip the balance in favour of the appellant being able to remain in the UK despite his serious offending.
19. That is a finding which is entirely consistent with the ratio of the Court of Appeal in EJA and I can identify no reason to interfere with it. The appellant's 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 2 February 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 2 February 2017

Upper Tribunal Judge Clive Lane