Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: RP/00062/2015
RP/00063/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 20th September 2016
On 28th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

haa (first Appellant)
NRA (second Appellant)
(ANONYMITY ORDER made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr R Sharif of Fountain Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The Appellants appeal against a decision of Judge Obhi of the First-tier Tribunal (the FtT) promulgated on 4th January 2016.
2. The first Appellant was born on 5th May 1955 and is the mother of the second Appellant born 7th June 1999.
3. Both Appellants entered the UK as visitors in September 2006 and claimed asylum. They were subsequently granted refugee status on 5th March 2007 on the basis of their Somalian nationality, and their fear of returning to Somalia. The second Appellant was granted refugee status as the dependant of the first Appellant.
4. On 8th July 2014 the Respondent wrote to the Appellants indicating that consideration was being given to the cancellation of their refugee status. This was because it had been discovered that on 8th August 2006 both Appellants had produced Yemeni passports in Dubai, when applying for entry clearance as visitors.
5. The Respondent relied upon paragraph 339A(viii) which states that a grant of asylum under paragraph 334 of the Immigration Rules will be revoked or not renewed if the Secretary of State is satisfied that misrepresentation or omission of facts, including the use of false documents, were decisive for the grant of asylum.
6. The Respondent was satisfied that the Appellants were not Somalian nationals when they applied for asylum, and had that been known, they would not have been granted asylum.
7. On 27th July 2015 the Respondent made a decision to cancel the refugee status of the first Appellant, and the second Appellant as her dependant. The Respondent confirmed that this decision had been taken because the Appellants had submitted genuine Yemeni passports in Dubai when they applied for entry clearance to the UK as visitors.
8. The Appellants appealed to the FtT pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
9. The FtT heard evidence from the Appellants and five family members.
10. The FtT described (in paragraph 33) the evidence presented on behalf of the Appellants as unsatisfactory, and noted "many inconsistencies in the Appellants' accounts".
11. The FtT found that the second Appellant was born in Yemen as indicated by her passport. The FtT found that the first Appellant was originally from Somalia but left there "in or about 1992" and thereafter lived in Yemen where she obtained Yemeni nationality. The FtT dismissed the appeals on all grounds.
12. The Appellants applied for permission to appeal to the Upper Tribunal relying upon four grounds which are summarised below;
Ground 1
The FtT made material contradictory findings. At paragraph 28 the FtT accepted that the first Appellant had been a Somali national, and at paragraph 33 accepted that the first Appellant was likely to have been born in or spent some time in Somalia and clearly has significant links with Somalia. However at paragraph 34 the FtT found that the Appellants could not be returned to Somalia as they are not nationals of that country.
It was contended that the finding at paragraph 28 that the first Appellant had been a Somali national, was contradictory with the findings at paragraph 34 that the Appellants are not Somalian nationals. There were no findings that the Appellants had renounced their Somali nationality.
Ground 2
The FtT made a material misdirection at paragraph 30 by stating that it was not in dispute "that at some point the Appellant acquired Yemeni nationality". It was contended that this was in dispute as both Appellants clearly disputed acquiring Yemeni nationality, contending that they were Somali nationals, and the first Appellant stated that Yemeni passports used in Dubai to obtain entry clearance were false.
Ground 3
The FtT accepted at paragraph 28 that the first Appellant had been a Somali national. In the light of that finding it was contended that paragraph 339A of the Immigration Rules was not satisfied as the first Appellant had not made a misrepresentation which was decisive in the grant of asylum.
Ground 4
The FtT failed to address why paragraph 276ADE(1)(vi) of the Immigration Rules is not satisfied. It was contended that there would be very significant obstacles to the Appellants' integration into either Somalia or Yemen.
Furthermore the FtT did not adequately consider the exceptional and compelling circumstances when considering Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention) outside the Immigration Rules, particularly in light of the Appellants' family members in the United Kingdom, including other children.
13. Permission to appeal was granted by Judge Pooler on 28th January 2016. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008. In summary it was not accepted that the FtT had materially erred. It was contended that the FtT directed itself appropriately and gave reasoned conclusions.
14. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision should be set aside by reason of error of law.
The Oral Submissions
15. Mr Sharif relied and expanded upon the grounds contained within the application for permission to appeal.
16. Mr Mills relied upon the rule 24 response. In relation to Ground 1 it was contended that the FtT had made a finding that at the date of hearing the Appellants are Yemeni nationals. Adequate reasons for this finding had been given, including the fact that they had produced Yemeni passports to obtain entry clearance in 2006.
17. In relation to the second ground Mr Mills submitted that even if it was incorrect to state that it was not in dispute that at some point the Appellant acquired Yemeni nationality, it had not been demonstrated how this was material.
18. In relation to Ground 3 Mr Mills submitted that the FtT found that the Appellants had omitted material facts when applying for asylum, by not disclosing their Yemeni nationality.
19. With reference to the fourth ground, Mr Mills pointed out that no removal decision had been made, and there was no need to consider Article 8. Even if Article 8 should have been considered, adequate reasons had been given by the FtT for concluding that the appeal could not succeed with reference to Article 8.
20. Mr Sharif did not wish to make a response to the submissions made by Mr Mills.
21. I reserved my decision.
My Conclusions and Reasons
Ground 1
22. It is correct that at paragraph 28 the FtT accepted that the first Appellant had at some point been a Somali national. The FtT found that the first Appellant left Somalia in or about 1992.
23. It is also correct that at paragraph 33 the FtT found that the first Appellant was originally from Somalia and that she was "likely to have been born in or spent some time in Somalia". The FtT also found that the first Appellant "clearly has significant links with Somalia".
24. There is no material contradictory finding when the findings referred to above are compared to the FtT finding at paragraph 34 that the "Appellants clearly cannot be returned to Somalia as they are not nationals of that country". This is because, reading the decision as a whole, the FtT found that neither of the Appellants were Somali nationals at the date of hearing, and they were not Somali nationals when they applied for asylum in September 2006.
25. At paragraph 33 the FtT makes a clear finding in relation to the second Appellant which is "that the second Appellant was born in Yemen as her passport suggests, and as her mother has stated on at least one occasion". In the same paragraph the FtT makes a finding that the first Appellant although originally from Somalia, left "many years ago and lived in Yemen where she obtained Yemeni nationality".
26. The FtT found that both Appellants had presented Yemeni passports to the ECO in Dubai in 2006.
27. At paragraph 33 the FtT records that there are many inconsistencies in the accounts given by the Appellants, and these inconsistencies are highlighted in paragraphs 25-35.
28. This ground discloses no material error of law.
Ground 2
29. In my view the FtT was incorrect to state at paragraph 30 that what "is not in dispute is that at some point the Appellant acquired Yemeni nationality". It is apparent that both Appellants were disputing this, but I do not see how the incorrect statement by the FtT is in any way material. It is clear from reading the FtT decision, that the FtT appreciated that there was a dispute as to nationality, and the FtT makes it clear that both Appellants were denying being Yemeni nationals. I conclude that this ground discloses an error in the form of a misstatement, but it is not a material error.
Ground 3
30. In my view this ground is misconceived. The challenge relates only to the first Appellant who the FtT accepted at paragraph 28 had been a Somali national. The FtT found that both Appellants had Yemeni nationality when the asylum claim was made. This was not declared which amounted to an omission of facts, which was decisive in the grant of asylum. Had the Yemeni nationality been declared, the Appellants would not have been granted asylum as Somali nationals.
Ground 4
31. I do not find any material error disclosed by this ground. In my view the FtT was not obliged to consider Article 8. There was no removal decision. Section 84(3) of the 2002 Act provides that an appeal under section 82(1)(c) which relates to revocation of protection status, must be brought either on the basis that the decision breaches the United Kingdom's obligations under the Refugee Convention, or breaches the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection.
32. The FtT made the point at paragraph 36 that further information was needed before the Article 8 rights of the Appellants could be properly considered, and commented that they would have the opportunity to provide further information to enable the Home Office to consider their Article 8 claims properly, as no removal decision had been made.
33. I conclude the grounds contained within the application for permission to appeal, disclose a disagreement with the conclusions reached by the FtT, but they do not disclose a material error of law.

Notice of Decision

The making of the decision of the FtT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeals are dismissed.

Anonymity

No anonymity direction was made by the FtT. I make an anonymity order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 because the second Appellant is a minor. Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 23rd September 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

No fee has been paid or is payable. The appeals are dismissed. There are no fee awards.

Signed Date 23rd September 2016

Deputy Upper Tribunal Judge M A Hall