Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12491/2018

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 11 March 2019
On 19 March 2019

Before

UPPER TRIBUNAL JUDGE FINCH

Between

A M
(ANONYMITY ORDER MAINTAINED)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss C. Jaquis of counsel, instructed by Duncan Lewis & Co
For the Respondent: Mr. N. Bramble, Home Office Presenting Officer

DECISION AND REASONS

BACKGROUND TO THE APPEAL

1. The Appellant was born in Somalia in 1982. He arrived in the United Kingdom on 22 March 1995, at that age of 13, with entry clearance under the family reunion policy and was granted refugee status and indefinite leave to remain, as a dependent of his mother, on 23 April 1996. It had been accepted that she had been associated with the Somalia Salvation Democratic Front and was a member of the Majeerteen, a sub-clan of Issa Mohammed.
2. Between 10 March 1998 and 28 February 2003, the Appellant was convicted on five separate occasions. The fifth conviction at Harrow Crown Court was for robbery and false imprisonment and he was sentenced to five years in prison. Between 26 June 2006 and 26 June 2008, he was convicted on three further occasions. The last conviction at Southwark Crown Court was for robbery and he was sentenced to four years in prison. This led to a deportation order being made against him on19 July 2010. This order was revoked on 27 January 2011 on the basis that he was a refugee.

3. On 11 January 2013 he was convicted at Isleworth Crown Court on six counts of possession of a Class A drug, namely heroin, with intent to supply and five counts of possession of a Class A drug, namely crack cocaine, with intent to supply. He was then sentenced to a total of two years imprisonment. He was served with notice of liability to deportation on 26 February 2013. On 28 March 2014 he was fined for possessing a Class A drug.

4. On 11 October 2016 the Appellant was informed that the Respondent intended to cease his refugee status and a decision was made to cease his refugee status on 24 May 2017. This was on the basis that since he was granted asylum the situation in Somalia had altered significantly. The Respondent also found that the Appellant could be removed to Puntland, as his mother had said that he was born there.

5. On 26 September 2017 the Appellant was notified that section 32(5) of the UK Borders Act 2017 required him to be deported. The Appellant did not respond but representations had previously been made on his behalf on 30 March 2017. A decision to deport him was served on the Appellant on 28 September 2017 and on 18 January 2018 a deportation order was made against him.

6. On 14 May 2018 the Respondent refused the Appellant's protection and human rights claims and the Appellant appealed on 29 October 2018. In a decision, promulgated on 14 January 2019, First-tier Tribunal Judge Baldwin dismissed his appeal. The Appellant appealed against this decision and on 31 January 2019 First-tier Tribunal Judge Simpson granted him permission to appeal to the Upper Tribunal.

ERROR OF LAW HEARING

7. Counsel for the Appellant submitted that section 72(2) of the Nationality, Immigration and Asylum Act 2002 had been referred to in her skeleton argument but accepted that the Appellant had not sought to rebut the presumption contained in this section in his grounds of appeal. She also accepted that First-tier Tribunal Judge Baldwin was obliged to consider whether the presumption had been rebutted before moving on to consider whether the Appellant was entitled to refugee status. The Home Office Presenting Officer accepted that First-tier Tribunal Judge Baldwin had failed to consider section 72(2) in his decision. He also submitted that the Judge had failed to make clear credibility finding in relation to his ability to return to Mogadishu in the context of MOJ & Ors (Return to Mogadishu) [2014] UKUT 442. I have referred to these and other submissions, where relevant, in my decision below.

ERROR OF LAW DECISION

8. It was not disputed that the Appellant was liable to automatic deportation under section 32(5) of the UK Borders Act 2017 as he had been convicted in the United Kingdom and sentenced at least 12 months imprisonment; namely two years imprisonment on 11 January 2013.

9. The Respondent had also certified that the presumption in section 72(2) of the Nationality, Immigration and Asylum Act 2002. This states that:

"A person shall be presumed to have been convicted of a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if -

(a) he is convicted in the United Kingdom of an offence and
(b) sentenced to a period of imprisonment of at least two years".

10. This was a rebuttable presumption, but in his decision letter the Respondent noted that the Appellant had failed to reply when he was given notice of the Respondent's decision to cease his refugee status and said that his refugee status remained ceased.

11. I note that on 24 May 2017 the Respondent had also decided to cease the Appellant's refugee status "in view of the fact that Article 1C (5) of the Refugee Convention and subsequently paragraph 399A(v) of the Immigration Rules now applies. The Applicant had a right to appeal against the decision to revoke his refugee status under section 82(1)(c) of the Nationality, Immigration and Asylum Act 2002.However, the grounds of appeal, dated 26 October 2018, only addressed the decision to refuse the Appellant's protection and human rights claim. They did not address the underlying decision to revoke his refugee status.

12. Furthermore, as noted in the grant of permission, First-tier Tribunal Judge Baldwin did not remind himself of the section 72 certification and went no further than stating at the start of paragraph 30 of the decision: "the Appellant has been convicted of particularly serious crimes and remains in my judgment a danger to the community here". He did not give any clear reasons for reaching this decision.

13. In addition, as First-tier Tribunal Judge Baldwin had not found that the Appellant had rebutted the presumption in section 72, he did not have the jurisdiction to consider whether there would be a breach of the Refugee Convention. This amounted to a material error of law, as accepted by both parties.

14. The Appellant had relied on Dang (Refugee - query revocation - Article 3) [2013] UKUT 00043 in which the Upper Tribunal found that:

"A decision to revoke or refuse to renew a grant of asylum under paragraph 339A of the Immigration Rules only relates to the individual's status under the Qualification Directive (European refugee status) and not his status under the Refugee Convention; further, it can only apply to cases in which the asylum application was made on or after 21 October 2004 and at least one of the provisions in sub-paragraphs (i)-(vi) of para 339A of the Immigration Rules applies".
15. However, as noted above, the decision to revoke his refugee status was not under challenge in the appeal. In any event, in paragraph 20 of the decision to cease the Appellant' refugee status the Respondent addressed both basis upon which his status could be ceased and stated:

"In the light of the above, it has been decided to cease your refugee status in view of the fact that Article 1C (5) of the 1951 and subsequently paragraph 339A(v) of the Immigration Rules now applies".

16. As a consequence, I find that there were errors of law in First-tier Tribunal Judge Baldwin's decision.

17. Given the fundamental flaws in the Judge's approach and the limited appeal grounds relied upon, both parties were of the view that the appeal should be remitted to the First-tier Tribunal and I am in agreement with this view.

DECISION

(1) The Appellant's appeal is allowed.

(2) The appeal is remitted to the First-tier Tribunal to be heard de novo by a First-tier Tribunal Judge other than First-tier Tribunal Judges Baldwin, Hodgkinson, Kainth and Simpson.

Nadine Finch

Signed Date 15 March 2019
Upper Tribunal Judge Finch