Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00009/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 29th September 2016
On 2 November 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

f a h
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Rutherford, Counsel instructed by Dicksons Solicitors
For the Respondent: Mrs Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant is a male citizen of Somalia born on 9th October 1976. He arrived in the UK in May 2002 and successfully applied for asylum on the basis that he was a member of a minority clan, namely the Ashraf Reer Hamar. He was granted refugee status on 18th July 2002. However on 8th November 2012 the Appellant was convicted of the offence of causing grievous bodily harm with intent and sentenced to four years' imprisonment. As a consequence on 30th July 2013 the Respondent decided to remove the Appellant and gave a certificate under the provisions of Section 72 Nationality, Immigration and Asylum Act 2002. Subsequently and on 9th June 2014 the Respondent further decided to cease the Appellant's refugee status under paragraph 339A(v) of HC 395 on the basis that Article 1C(5) of the Refugee Convention applied to him. The Appellant appealed, and his appeal was heard by First-tier Tribunal Judge Ford (the Judge) sitting at Birmingham on 2nd September 2015. On 28th September 2015 the Judge allowed the appeal. She found that the Appellant had rebutted the statutory presumption provided by Section 72 of the 2002 Act, but that the Respondent had shown a revocation exception to the refoulement principle. However, she also found that the Appellant's removal to Mogadishu would be contrary to his rights given by Article 3 ECHR and on that basis the Judge allowed the appeal. The reasons for her decision were given in the Decision dated 28th September 2015. The Respondent sought leave to appeal that decision, and on 16th February 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. I first decide that the Respondent's challenge to the Section 72 decision is immaterial. This is because the Judge only allowed the appeal on Article 3 ECHR grounds and Section 72 has no application to such a decision.
4. Otherwise, the Judge allowed the appeal on Article 3 ECHR grounds she was satisfied that if returned to Mogadishu, being a member of a minority clan, the Appellant would be unable to secure the necessities of life and being without family or clan support or connections he would almost inevitably be reduced to destitution in the IDP camps.
5. At the hearing, Mrs Aboni referred to the grounds of application and argued that the Judge had erred in law in coming to this conclusion. This was because the Judge had relied upon objective evidence contained in reports which predated the Country Guidance decision of MOJ and others (return to Mogadishu) CG [2014] UKUT 00442 (IAC). Further, the Judge had given inadequate reasons for her finding that the Appellant was something more than an ordinary citizen and that he could not reintegrate into life in Mogadishu. For example, the Judge had not explained her finding that the Appellant would not be able to find employment in Mogadishu. In response, Ms Rutherford referred to the Rule 24 reply and submitted that there was no such error of law in the decision of the Judge. The Judge gave detailed reasons for her conclusions. The evidence of the Appellant as to his personal circumstances including those in Somalia prior to his departure were not contested by the Respondent. The Judge had conducted a careful and thorough assessment of the Appellant's circumstances as she was required to do by the decision in MOJ and others. She had considered all the relevant factors given in that case. The Judge had correctly given weight to the facts that the Appellant had no family and connections in Mogadishu, and had been absent from that city for an extended period of time. MOJ and others confirmed that members of a minority clan could expect no assistance on return. The Judge had therefore been right to conclude that it was inevitable that on his return the Appellant would have to live in an IDP camp. It was not disputed by the Respondent that the destitution experienced in such camps amounted to inhumane and degrading treatment.
6. I find no material error of law in the decision of the Judge. I have already dealt with the Section 72 2002 Act issue. The remaining question is whether the Article 3 ECHR decision contained an error on a point of law. I find that it did not. It is clear from reading the Decision that the Judge took full account of the decision in MOJ and others, and set out that decision in detail in paragraphs 71 to 74 inclusive of the Decision. The Judge acknowledged that the situation in Somalia had improved since the decision in AMM and others (humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC). The Judge considered the risk of return in the context of the Appellant's clan membership and his circumstances in Mogadishu in accordance with paragraphs 407(f) and (h) of MOJ and others. The Judge made relevant findings of fact concerning the Appellant's circumstances and gave a number of cogent reasons for finding that if returned to Mogadishu the Appellant would have to live in an IDP camp. Those reasons are adequately set out in paragraphs 90 to 98 inclusive of the Decision. It is not in dispute that returning to an IDP camp in Somalia would amount to treatment contrary to the Appellant's Article 3 ECHR rights.

Decision
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 that decision.
The appeal to the Upper Tribunal is dismissed.
Anonymity
The First-tier Tribunal made an order for anonymity which I continue for the reasons given by the First-tier Tribunal.

Signed Date

Deputy Upper Tribunal Judge Renton