Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00022/2015

THE IMMIGRATION ACTS

Heard at : UT(IAC) Birmingham
Decision & Reasons Promulgated
On : 6 January 2017
On: 11 January 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MOHAMED SALAH OMAR
Respondent

Representation:
For the Appellant: Ms E Rutherford, instructed by Dicksons Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Mr Omar's appeal against the respondent's decision to cease his refugee status and to refuse his human rights claim further to a decision to deport him pursuant to section 32(5) of the UK Borders Act 2007.

2. For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and Mr Omar as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

3. The appellant is a citizen of Somalia, born on 15 February 1980. He claims to have arrived in the United Kingdom on 3 July 2003. He was granted refugee status and indefinite leave to remain on 13 February 2004 further to a successful appeal against a decision to refuse his asylum claim, on the basis of his membership of the minority Reer Shikh, Reer Hamar minority clan.

4. On 22 December 2009 the appellant was convicted of wounding with intent to do grievous bodily harm and wounding/ inflicting grievous bodily harm and was sentenced, on the same day, to ten years' imprisonment.

5. On 18 March 2010 the appellant was notified of his liability to automatic deportation in accordance with section 32(5) of the 2007 Act and he made representations in response. On 14 November 2013 the respondent invited the appellant to seek to rebut the presumption under section 72 of the Nationality, Immigration Act 2002 that he had been convicted of a particularly serious crime and constituted a danger to the community. He responded in a letter dated 28 November 2013. On 4 June 2014 the appellant was notified of the respondent's intention to cease his refugee status under Article 1C(5) of the Refugee Convention and paragraph 339A of the immigration rules on the basis that the circumstances in connection with which he had been recognised as a refugee had ceased to exist. On 9 July 2014 the respondent notified the UNHCR of the same, to which the UNHCR responded on 1 August 2014.

6. On 27 April 2015 the respondent made a decision to cease the appellant's refugee status and notified him of his right of appeal under section 82(1) of the Immigration, Nationality and Asylum Act 2002 against the decision to revoke his protection status. On 1 May 2015 the respondent made a decision to deport the appellant under section 32(5) of the 2007 Act. On 17 June 2015 the respondent made a decision to refuse the appellant's human rights claim and on the same day issued a deportation order pursuant to section 32(5) of the 2007 Act.

7. In her decision of 27 April 2015 ceasing the appellant's refugee status, the respondent accepted that she was unable to conclude that he would be at no risk on return to his home area, and accepted that he had no recent experience of living in Somalia. However the respondent considered that he could relocate to Mogadishu where he would not be at risk. The respondent concluded that the situation regarding minority clans, which was the basis upon which he had initially been granted refugee status, had since changed. The respondent relied on the country guidance in MOJ & Ors (Return to Mogadishu) (Rev 1) (CG) [2014] UKUT 442 in regard to minority clans and the current improved situation in Mogadishu and considered that the appellant no longer required international protection on the basis of his clan membership and that he would not be at risk of becoming a vulnerable IDP in breach of Article 3 of the ECHR. The respondent therefore decided to revoke the appellant's refugee status.

8. In her decision of 17 June 2015 refusing the appellant's human rights claim, the respondent noted that the appellant had not responded to the deportation decision of 1 May 2015 and had not made any assertions that he fell within the exceptions to automatic deportation under section 33 of the 2007 Act. The respondent nevertheless considered the appellant's earlier representations made in February 2014 and considered Article 8 of the ECHR, concluding that the appellant could not meet the requirements in paragraph 399(a) and (b) or 399A of the immigration rules and that there were no very compelling circumstances outweighing the public interest in his deportation. The respondent found that the appellant could not meet any of the exceptions to automatic deportation in section 33.

9. The appellant's appeal against the respondent's decisions was heard in the First-tier Tribunal on 18 November 2015 by a panel consisting of First-tier Tribunal Judge Borsada and a non-legal member, Ms Endersby. It was argued, before the panel, that the respondent had failed to meet the test of demonstrating a fundamental and durable change in the circumstances in Somalia so as to justify revoking the appellant's refugee status, and that the appellant fell within an "at risk" category as identified in MOJ, as being a minority clan member with no support network in Mogadishu. It was asserted on behalf of the appellant that there was no-one in the UK who could send him financial remittances to assist him in establishing himself in Mogadishu and that he had no family members remaining in Somalia, his father and brother having been killed in the conflict, his mother and sister living in a refugee camp in Yemen and the whereabouts of his wife and other sister being unknown. It was asserted that he would most likely find himself living in an IDP camp in conditions in breach of his Article 3 rights. In addition, it was argued that the appellant had rebutted the presumption under section 72 of the 2002 Act.

10. The panel accepted that the appellant had no family or other connections or associations in Mogadishu and no external means of support and considered that it would be difficult for him to find employment given the exploitation and discrimination of his clan and his limited skill set. The panel accepted that the appellant had rebutted the presumption in section 72 of the 2002 Act and found that he would be at risk on return to Mogadishu. They allowed the appellant's appeal.

11. The Secretary of State sought permission to appeal to the Upper Tribunal, asserting that the panel did not provide adequate reasons for their conclusions on section 72 and in regard to cessation. With regard to the latter the grounds asserted that the panel failed to give adequate reasons why the appellant would be without clan support in Mogadishu and that their finding that the appellant would find it difficult to find employment in Mogadishu was at odds with the evidence and guidance in MOJ. Permission to appeal was granted on 15 December 2015.

Appeal hearing and submissions

12. The appeal came before me on 6 January 2017. Both Ms Rutherford and Mr Mills were in agreement with a point I raised, namely that whilst the First-tier Tribunal had made findings on section 72 and the respondent had challenged those findings in the grounds of appeal, the respondent had in fact never issued a certificate to the effect that the presumption under section 72(2) applied, pursuant to section 72(9)(b). I noted that the respondent had issued a section 72 notice on 14 November 2013 inviting the appellant to rebut the presumption, and that the appellant had responded on 27 November 2013 seeking to rebut the presumption. There was, however, as far as I could ascertain, no indication in the cessation decision of 27 April 2015, the deportation decision of 1 May 2015 or the decision of 17 June 2015 refusing his human rights claim, that the respondent had actually certified that the presumption applied. The parties were therefore in agreement that that was not a matter that the First-tier Tribunal ought to have considered, but in any event it was accepted that it was in effect immaterial. Mr Mills agreed that even if section 72 had applied to the appellant, and he therefore was excluded from protection under the Refugee Convention and humanitarian protection, he could still seek to rely on Article 3 and therefore the main issue in the appellant's case and the grounds of challenge was the cessation decision and the question of risk on return.

13. It was Mr Mills' submission that the panel's decision was contrary to the guidance in MOJ, in particular to the question of ability to find employment in Mogadishu. It was clear from MOJ that clan membership was no longer a risk factor and the relevant paragraphs in MOJ referring to the economy provided no support for the panel's conclusion that the appellant would not be able to find employment and would find himself in an IDP camp. There was no reason why the appellant could not find employment in Mogadishu and he could not, therefore, succeed. Mr Mills asked me to set aside the panel's decision and re-make it by dismissing the appeal.

14. Ms Rutherford submitted that the panel considered all relevant matters at [8] and reached a conclusion that was open to them. Clan membership was relevant insofar as majority clan members would have support in finding employment. She asked me to uphold the decision of the panel but also accepted that if I decided that the panel had erred in law as Mr Mills suggested, then the only outcome would be to re-make the appeal by dismissing it. She confirmed that there was no realistic Article 8 argument and that the only basis upon which the appellant could succeed was in regard to risk on return.

Consideration and findings.

15. As stated above, and as the parties agreed, the only relevant ground was the second ground which related to the question of cessation of refugee status. The question facing the panel was therefore whether there had been a fundamental and durable change in the situation in Somalia, in particular Mogadishu to where it was accepted that the appellant would be expected to relocate.

16. It is clear that MOJ found there to be a durable change in the situation in Mogadishu, in particular in the security risks that had previously arisen as a result of Al Shabab's presence in the city. It was also found in MOJ, at [337] to [343] that clan membership was no longer a significant issue and that membership of a minority clan was no longer a risk factor in itself. However, other than acknowledging at [10] the references in MOJ to the general improvement in the security situation in Mogadishu and the revival of the economy, the panel did not engage with these issues and focussed solely on the risk factors to the appellant as a member of a minority clan, in terms of availability or lack of support, concluding at [8] that owing to the exploitation and discrimination of his clan he would have difficulty finding employment.

17. The respondent challenges such a conclusion as being inconsistent with MOJ. Ms Rutherford sought to persuade me that the respondent's grounds were simply a disagreement with the panel's decision and that the panel's findings were open to them, but I have to disagree. Although it was found in MOJ, and I refer in particular to [343], that clan support could be of assistance, it did not provide the converse, namely that an absence of support as a member of a minority clan would prevent access to employment or other opportunities. Indeed, the Tribunal found at [342], with regard to clan support, that "this source of assistance must not be overstated".

18. Paragraphs [344] to [352] of MOJ provide details of the opportunities available to returnees as a result of the economic boom, referring to opportunities in unskilled work such as building labour, and emphasising at [351] the advantages for returnees from the West in seeking employment. These are matters that the panel failed to consider. As Mr Mills submitted, there is nothing in the evidence provided in MOJ in these paragraphs or the preceding paragraphs dealing with the significance of clan membership to support the panel's findings that the appellant would have extreme difficulty finding employment as a result of his clan membership and limited skill set. On the contrary the evidence before the panel was that the appellant had undertaken various courses in the UK including a pneumatic nailing dispenser course and various English language courses, yet no consideration was given to such matters, particularly in the context of the findings in MOJ about employment opportunities.

19. Accordingly, whilst the panel were perfectly entitled to take into account and place weight upon the considerations in [ix] of the head-note to MOJ applicable to the appellant, namely the fact that he was not from Mogadishu, that he was from a minority clan, that he had no family support in Mogadishu and no financial support from family in the UK, they failed to make proper and reasoned findings, consistent with the evidence set out in MOJ, as to his prospects of securing a livelihood. The evidence before the panel did not demonstrate that the appellant had met the burden of proof set out at [x] and did not demonstrate that the appellant fell within the category of people set out at [xi] of the head-note and their findings that the appellant would end up in an IDP camp were simply not sustainable in the light of the evidence in MOJ. On the contrary the evidence before the panel, including the evidence provided by the appellant and the evidence of employment opportunities in Mogadishu, and the appellant's profile as a young, healthy male with various qualifications in the UK suggested that he would have no problem securing a livelihood in Mogadishu and re-establishing himself there.

20. For all of these reasons it seems to me that there had been fundamental and durable changes in Somalia since the appellant was granted refugee status. The basis upon which he was granted refugee status, namely membership of a minority clan, no longer provided grounds for demonstrating a risk on return. The security situation in Mogadishu for returnees, including those not originally from Mogadishu, had substantially improved, and the appellant had failed to demonstrate that he would not be able to re-establish himself in that city and secure a livelihood for himself. The evidence did not suggest that he would find himself in an IDP camp and there was no basis for concluding that his deportation would breach Article 3 of the ECHR or that he was in need of humanitarian protection or international protection as a refugee. The respondent was entitled to revoke the appellant's refugee status and the panel erred in law concluding otherwise.

21. Accordingly I set aside the panel's decision and, for the same reasons, and given Ms Rutherford's properly made concession that there was no realistic Article 8 argument, re-make the decision by dismissing Mr Omar's appeal on all grounds.

DECISION

22. The making of the decision of the First-tier Tribunal involved an error on a point of law. The Secretary of State's appeal is accordingly allowed and the decision of the First-tier Tribunal is set aside. I re-make the decision by dismissing Mr Omar's appeal on all grounds.

Signed
Upper Tribunal Judge Kebede