Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00032/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 9 February 2017
On 14 February 2017

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

I A A
(anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Knight, Legal Representative at Duncan Lewis Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. Although this appeal is brought by the Secretary of State, I continue to refer to the parties as they were before the First-tier Tribunal.

2. The appellant is a Somali national born on 12 December 1991. He arrived here aged 13 in 2005 to join his father who had been granted refugee status in 2002. Regrettably, the appellant began to criminally offend soon after his arrival and has amassed a total of 18 convictions for 25 criminal offences. On 17 March 2016 the respondent made a decision to withdraw his refugee status and to refuse his human rights claim. His appeal was heard by First-tier Tribunal Judge Troup at Newport on 9 November 2016. The judge considered that the appellant was excluded from the Refugee Convention (a matter conceded by the appellant), but he allowed the appeal on humanitarian protection and article 3 grounds. His determination was promulgated on 2 December 2016.

3. The respondent sought and obtained permission on the basis that the judge had failed to address the issue of exclusion from humanitarian protection even though that had been a matter specifically raised in the decision letter. It was also argued that the judge had erred in his assessment of paragraph 399A.

4. The appellant did not attend the hearing before me. I heard submissions from the parties. Mr Bramble submitted that the issue of exclusion had been addressed in the decision letter and that the judge was therefore obliged to consider it but failed to do so. He also argued that the judge was wrong to consider the appellant's residence here for less than half his life as a qualifying factor when paragraph 399A required residence to be for most of an appellant's life. However, he conceded that there had been no challenge to the judge's article 3 findings.

5. Mr Knight sought to underplay the appellant's offending behaviour, arguing that he was not a rapist or war criminal and was not someone who fell within the exclusion clauses. He submitted that the appellant had spent his formative years here and was a home grown criminal. However unfortunate it was that young Somalis had a higher than average involvement in crime, it would not be proportionate to withdraw humanitarian protection from him.

6. Mr Bramble responded and submitted that having found that the appellant fell within the Refugee Convention exclusion clauses, the judge should also have found that he fell to be excluded from humanitarian protection.

7. That completed the submissions. At the conclusion of the hearing I reserved my determination which I now give.

8. Errors of Law

9. The respondent is quite correct to say that the appellant's exclusion from humanitarian protection was a matter clearly raised in the decision letter. As such the judge was obliged to consider it and failed to do so. That is an error of law and it is material to the because the grant of humanitarian protection brings with it equivalent benefits to a grant of status under the Refugee Convention. On that basis I am required to set aside the decision of the judge to allow the appeal on humanitarian protection grounds.

10. The judge also erred in his article 8 conclusions. He appears to have relied on the appellant's residence in the UK for "nearly 12 years" or "a little under half of his life" to justify a conclusion that removal would be disproportionate. However, as the respondent has pointed out, paragraph 399A which is mirrored in section 117C requires a person to have spent most of their life in the UK. By the judge's own finding the appellant was not such a person and hence his assessment was based on a false understanding of the law. I, therefore, also set aside the decision to allow the appeal on article 8 grounds.

11. Re-making the decision

12. Neither party sought a further hearing in the event that errors of law were to be found. Indeed, little would be served by such a course of action. This is because, as Mr Bramble acknowledged, there had been no challenge to the judge's article 3 findings and conclusions. That decision therefore stands.

13. For the sake of completeness, I now turn to the issues of humanitarian protection and article 8.

14. As maintained in the decision letter and repeated in the respondent's grounds, "A person will not be eligible for a grant of humanitarian protection if he is excluded from it because one of the following provisions in paragraph 339D of the Immigration Rules apply". The provisions which are potentially applicable here are that he has committed or otherwise participated in a serious crime or constitutes a danger to the community. It is of note that the appellant was found to be excluded from the Refugee Convention and, despite what is now put forward in the appellant's skeleton argument, his exclusion was not challenged at the hearing.

15. The appellant's criminality was already found to be such as to exclude him from the Refugee Convention. Given that concession, it is difficult to see how it can be argued that his behaviour and recidivism is not serious enough to also merit exclusion on humanitarian protection grounds. The skeleton argument for the appellant makes two submissions in his favour. The first is that he has lived in the UK lawfully for close to 12 years. The second focuses on the appellant's conduct since the offences were committed. It is maintained that time has elapsed, he does not pose a risk to the community, has not reoffended since his release, is remorseful of his actions and has been assessed by his Probation Officer as a medium risk to the public.

16. The period of residence is not disputed however it falls short of amounting to a positive factor which could outweigh the public interest in that it does not amount to a period of most of his life. Moreover, much of that time has been spent involved in criminality and I have seen no evidence of any sign of integration into the community. Apart from a two-week apprenticeship, the appellant has never worked and no evidence of any ties he has established here was before the Tribunal. The appellant is not supported by his father and indeed appears to be estranged from all his family. Although it is argued that the appellant has not offended since his last release, he was in custody at the date of the hearing (having breached the terms of his bail) and, apart from a brief four-week period between June and July 2016 when on bail, he had remained in detention after his term of imprisonment came to an end. It is difficult, therefore, to see how any positive observations on recent non-offending can be made. It is also of note that the last offence occurred only days after his previous release from prison and the judge remarked that the appellant had not learned any of the lessons of previous sentences. The appellant had also been warned of the prospect of deportation on at least two occasions in 2012 and 2013 but totally disregarded those warnings. Even when on bail after the last offence, he failed to attend two appointments with his probation officer. There is not a shred of reliable evidence to support the submission that the appellant is remorseful or has reformed. His crimes which exclude him from the Convention, also exclude him from a grant of humanitarian protection and the appeal is dismissed on humanitarian protection grounds.

17. Other than the appellant's period of residence and ability to speak English, no evidence to support an article 8 claim was put forward. There was no claim of family life, no friendships, no community ties and no evidence of social or cultural integration. Moreover, even if a private life were to be accepted, the public interest in his removal, particularly as someone who was excluded from the protection of the Refugee Convention and humanitarian protection, is compelling. However, a decision on article 8 grounds is unnecessary given the circumstances. The appellant has succeeded on article 3 grounds and so there is no benefit to a full article 8 assessment and I decline to undertake one.

18. Decision

19. The decision of the First-tier Tribunal contained errors of law and is set aside to a limited extent.

20. The appeal is dismissed on Refugee Convention grounds.

21. The appeal is dismissed on humanitarian protection grounds.

22. The decision to allow the appeal on article 3 grounds is unchallenged and stands.

Signed

Upper Tribunal Judge

Date: 9 February 2017