Tribunal decisions

The decision

IAC-AR-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00052/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 November 2016
On 21st November 2016

Before

UPPER TRIBUNAL JUDGE FINCH

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
-and-

M M O
(anonymity direction MADE)
Respondent

Representation:
For the Appellant: Mr. L. Tarlow, Home Office Presenting Officer
For the Respondent: Ms F. Allen of counsel, instructed by Warnapala & Company

DECISION AND REASONS

1. The Respondent, who was born on 9 December 1991, is a national of Somalia. He and his father entered the United Kingdom on 22 June 2005 to join his mother, who had been granted asylum and indefinite leave to remain here on 2 November 2000. On 23 January 2012 the Respondent's application to naturalise as a British citizen was refused, as he had not submitted all the required documentation.

2. On 15 October 2013 the Respondent was convicted on one count of possession with intent to supply a Class A drug, namely heroin, and one count of possession with intent to supply a Class A drug, namely cocaine, and also a breach of a suspended sentence previously imposed for two counts of robbery. He was sentenced to three years and six months imprisonment. On 23 January 2015 he was notified that the Appellant intended to deport him from the United Kingdom and on 6 February 2015 the Respondent's representatives submitted that he feared persecution in Somalia.

3. On 15 July 2015 the Appellant decided to deport the Appellant, refused his human rights claim and notified him that his refugee status had ceased. Then on 14 July 2015 the Appellant made a deportation order pursuant to section 32 of the UK Borders Act 2007. The Respondent appealed and in a decision promulgated on 15 September 2016 First-tier Tribunal Judge Freer allowed his appeal. The Appellant appealed on 22 September 2016 and First-tier Tribunal Judge Baker granted him permission to appeal on 3 October 2016 on the basis that First-tier Tribunal Judge Freer had not given adequate reasons for the findings he had made. She found that he had not given any adequate reasons for finding the witnesses credible or concluding that there was no significant risk of the Respondent committing further offences.

ERROR OF LAW HEARING

4. At the error of law hearing, the Home Office Presenting Officer said that he relied on the grounds of appeal and stressed that the First-tier Tribunal Judge should have given adequate reasons for his decision. Counsel for the Respondent submitted that his reasoning had been sufficient. I address the details of their submissions in my findings below.

FINDINGS

5. It was not disputed that at the time of his conviction and sentence the Appellant had indefinite leave to remain on the basis that he had been a dependent of his mother, who had been granted refugee status. Article 33(1) of the Refugee Convention generally prohibits the expulsion of a refugee. But Article 33(2) removes this protection where there are reasonable grounds for regarding him as a danger to the security of the country he is in or, where having been convicted by a final judgment of a particularly serious crime, he constitutes a danger to the community of the protecting state.

6. Section 72(2) of the Nationality, Immigration and Asylum Act 2002 states that:

"A person shall be presumed to have been convicted of a final judgement 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".

7. In this case the Appellant had been sentenced to three and a half years imprisonment. However, section 72(6) also states that "a presumption under (2) that a person constitutes a danger to the community is rebuttable by that person". The Appellant was informed of these provisions in a letter from the Appellant, dated 3 June 2014 and made representations in response on 6 February 2015.

8. At paragraph 61 of his decision and reasons First-tier Tribunal Judge Freer found that "the indicators are that the Appellant now is no risk to the community, applying the relevant burden and threshold to the evidence as a whole. He is not shown to be, or have been at any time, a criminal instigator. Given my findings on the facts as a whole that he is no longer a danger to the community ?..I reverse the section 72 certificate for the reasons given".

9. The Appellant relies on MK (duty to give reasons) Pakistan [2013] UKUT 000641 (IAC) and Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC). In the latter case, the Tribunal held that it was necessary for first-tier tribunal judges to identify and resolve the key conflicts in the evidence and explain in clear and brief terms their reasons for preferring one case to the other so that the parties can understand why they have won or lost.

10. In her grounds of appeal, the Appellant submits that in paragraph 55 of his decision the First-tier Tribunal Judge did not explain why he had concluded that the Appellant had given a credible account of matters. I accept that the First-tier Tribunal Judge had had the opportunity of hearing the Respondent give oral evidence and that he had reviewed his case, as outlined in his witness statement and oral evidence, in paragraphs 31 to 40 of his decision and reasons.

11. However, he also needed to address the assertion by the Appellant in her refusal letter that his family support network had not previously prevented him from offending. It was not sufficient for him to simply say at paragraph 59 that two of the witnesses have given plausible evidence that he had cut ties with the dealers he had previously worked for. He also failed to refer to sections of the OASys, which may well have assisted the Appellant or particular parts of the witnesses' evidence which indicated that his support network was actively working to ensure that he did not re-offend. Therefore, I find that this part of the decision was not sufficiently reasoned.

12. The Appellant also submitted that no reasons were given for his finding in paragraph 75(iv) of the decision and reasons. However, the Appellant had accepted that the Appellant had no remaining family members in Somalia and the Judge had found that the Appellant's mother had severe mental health problems and would probably never work again and that his father was fully engaged in caring for her. He also found that the family were subsisting on benefits. There was no factual basis for the submission by the Appellant at the hearing that the Appellant's family would be able to send money to him if he were deported to Somalia. Therefore, I do not find that this amounted to an error of law.

13. In her third ground of appeal the Appellant submitted that the First-tier Tribunal Judge had made a perverse or irrational finding when she found in paragraph 75(v) of his decision and reasons that the Appellant could not be expected to work in a dusty atmosphere due to his chronic asthma problem. I accept that there was no evidence to show that he would not be able to work there in any capacity. However, this was the last of a large number of factors on which the Judge relied in paragraph 75 and I find that it was not determinative of his overall findings and did not amount to an error of law.

14. The second ground of appeal related to the cessation of the Appellant's refugee status. She submits that the First-tier Tribunal Judge made a material error of law when he found in paragraph 62 of his decision and reasons that the cessation decision was wrong in law. I accept that in the letter from the Appellant, dated 22 January 2015, and in paragraph of the refusal letter the Appellant relied on the fact that there had been vast improvements in the situation in Somalia since he was granted refugee status as his mother's dependent. However, in his decision and reasons the First-tier Tribunal Judge fully explored the country guidance provided in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). He also took into account more recent objective evidence from reputable international organisations and the expert report by Professor Aguilar, dated 2 January 2016. They indicated that the improvements, relied upon in MOJ, had not been sustained and, therefore, there was a lawful and reasoned basis for the Judge finding that the cessation decision was unlawful.

15. Furthermore, in paragraphs 63 and 64, he indicated that his reliance on the UNHCR letter, which said that criminal convictions should not be used to trigger a cessation decision, was in the alternative and was not the primary reason for finding that the cessation decision was unlawful.

DECISION

16. For these reasons I find that the only error of law in First-tier Tribunal Judge Freer's decision and reasons was his failure to give comprehensive reasons for finding that the Appellant did not pose a future risk to the community.

17. I allow the appeal to this limited extent.

18. I remit this appeal to First-tier Tribunal Judge Freer in order for him to reconsider that part of his decision.

19. His findings on other issues stand.

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.

Nadine Finch

Signed Date 17 November 2016
Upper Tribunal Judge Finch