Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00067/2015

THE IMMIGRATION ACTS

Heard at Hill Street, Birmingham
Decision & Reasons Promulgated
On 16th March 2017
On 21st April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MAA
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Respondent: Mr M Karnik of Counsel instructed by Duncan Lewis
For the Appellant: Ms Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS

ANONYMITY DIRECTION

As was the case at the First-tier Tribunal, I make an anonymity order. Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the Appellant and Respondent. Failure to comply with this direction could lead to, inter alia, contempt of court proceedings.

1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Phull whereby she had allowed MAA’s appeal against the making of a deportation order and Article 8 ECHR. The Judge had refused the Secretary of State’s application for cessation of MAA’s refugee status. The original Appellant before the First-tier Tribunal was MAA and for ease in following this decision I shall continue to refer to him as the Appellant although it is it the Secretary of State who has brought this appeal.

Appellant’s Immigration History

2. The Appellant’s immigration history is detailed. A summary of it is that he had arrived in the United Kingdom on 9 July 2004 pursuant to a family reunion application made by him, along with his mother and siblings to join his father who had been granted refugee status. The Appellant was then aged 11. The Appellant’s family thereby were granted status and indefinite leave to remain in line with the Appellant’s father on arrival to the United Kingdom. The Appellant has a history of offending. In 2011, he was sentenced to a Detention and Training Order for a period of 4 months for offences of possession of a Class B Drugs, possessing an offensive weapon and resisting or obstructing a constable. Thereafter in 2014 he was sentenced to 7 weeks’ imprisonment for failing to surrender to custody. Also in 2014, he was sentenced to 20 imprisonments for two counts of Robbery.

3. The automatic deportation provisions pursuant to section 32 of the Borders Act 2007 applied. In response to the Respondent’s correspondence seeking evidence why the provisions should not lead to deportation, on 6th August 2014 the Appellant made a human rights claim. By way of decisions dated 7th August 2015 and 13th August 2015 the Respondent refused that claim and she also made and maintained a decision to deport the Appellant. The Respondent also proposed, pursuant to Article 1(5)(C) of the Refugee Convention, to revoke the Appellant’s refugee status.

Respondent’s Decision and Grounds of the Appeal

4. The Respondent’s reasons for the seeking revocation of refugee status are set out in a detailed decision, part of which states as follows,

“The Home Office is therefore satisfied that, subsequent to obtaining refugee status in 2004, you can no longer, because the circumstances in connection with which you were recognised as a refugee have ceased to exist, continue to avail yourself of the protection of the country of nationality……..In light of the above, it has been decided to refuse you refugee status in view of the fact that Article 1(5)(C) of the 1951 Refugee Convention and subsequently Paragraph 339A(v) of the Immigration Rules, now applies.

5. The Respondent’s reasons for deportation in summary were that the Appellant has been convicted of two counts of robbery for which he had been sentenced to 20 months detention in a Young Offenders’ Institute. The sentencing Judge had noted that there were aggravating features to the offence because there was more than one offender and that there was a certain extent of restraint of the victims who were vulnerable because of their age, along with there being an element of planning. The other previous convictions were also noted by the Respondent.

6. The Respondent’s grounds of appeal are somewhat discursive spanning 12 pages and 41 paragraphs, but can be summarised as contending that there was a material error of law in the Judge’s decision because:

(1) She misapplied the Country Guidance case of MOJ and others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC);
(2) She erred in finding that the Appellant’s removal would be incompatible with Article 3 of the European Convention on Human Rights;
(3) She erred as the cessation provisions of Article 1(5)(C) of the Refugee Convention ought to have applied as there was a fundamental change in the background circumstances in Somalia;
(4) She also erred in respect of Article 8 when she allowed the appeal on the basis of the exceptions set out in paragraph 399A of the Immigration Rules.

The Hearing

7. At the hearing before me Ms Aboni adopted the grounds of appeal and argued that the Judge had misapplied MOJ. She submitted that there can be a cessation of refugee status if there is a change in country circumstances. There was no longer any risk to the Appellant. The Judge had failed to identify the applicable risk categories and why there could be no return of the Appellant in light of his history and the fact that he had family in the United Kingdom who would assist him financially. There was also no adequate finding about the Appellant’s mental health.

8. Mr Karnik in his submissions said that there was nothing said by the Respondent about the Article 8 grounds argued. In reality what the Respondent was challenging were the Article 3 considerations. At paragraph 36 the Judge had said “…even if I am wrong…” and this was relevant to Article 32. The key paragraphs of the Judge’s decisions were paragraphs 32 and 33. Paragraph 34 referred to how it is was unsafe to move within Somalia. This related to ‘part of the territory’. There was no evidence of a durable fundamental change in the circumstances. There was reference to the UNHCR report. The Judge had made specific references to it. Overall, the Judge had taken a holistic approach.

9. In reply Ms Aboni submitted that there could be cessation of refugee status if the circumstances had been recognised to have changed or if the problems had ceased to exist. MOJ may refer to risk to some risk areas of Somalia but this did not form the basis of the particular circumstances and whether the risks continue to exist. It was not set out in the Respondent’s decision but there was reference to this at page M1 of the UNHCR report. The Appellant’s father was granted refugee status as he was part of the Tunni clan. That was the basis of the Appellant’s claim as he and the others were granted status in line with the Appellant’ father. He was not granted status because of any Article 15(c) risk. His appeal was granted on a specific Convention reason. There was no consideration of whether it had continued to be so. There could be financial support for the Appellant from the United Kingdom if he was removed to Somalia.

10. I reserved my decision.

Discussion and Reasoning

11. I shall deal first with the refugee status cessation issue. The Judge dealt with this aspect of the matter at paragraphs 28 to 39 of her decision. The Judge asked herself the right question at paragraph 29 of her decision, namely was the Respondent correct in contending that there had been a significant and non-temporary change in the circumstances in Somalia such that the Appellant’s fear of persecution could no longer be regarded as well founded?

12. The Judge’s findings and conclusions are set out over numerous paragraphs and included the following:

(1) While the UNHCR had specifically responded to the Secretary of State (in a document comprising some 20 pages), the Secretary of State’s ensuing decision had failed to heed the need to place the required weight on that detailed evidence and information;
(2) There was specific and relevant psychiatric evidence in respect of the Appellant from the Reaside Clinic. (That is well known to the Tribunal as being a place of expertise for psychiatric treatment). The specific report from Dr Muzzafar who had first knowledge of the Appellant had explained the risks from a mental health and medical perspective, namely, that the Appellant would face significant problems if removed to Somalia. It was noted that the Presenting Officer at the hearing had not taken any particular issue with that report;
(3) The Respondent herself accepted that Somalia remains unsafe for the Appellant to return to. The only matter raised was whether a return to a specific area, namely Mogadishu, would be safe. The Judge clearly and adequately reasoned that she preferred the most recent and specific evidence from the UNHCR dated May 2016. That indicated that the situation in Somalia had deteriorated since MOJ. Protection from Al-Shabab was not possible in Mogadishu;
(4) The Judge said that given that most of Somalia remained unsafe for the Appellant there was no basis to conclude that there has been a sufficient or fundamental change in Somalia to cease refugee status;
(5) The Judge said that even if she was wrong, in the assessment and conclusions rehearsed above, there was a real risk to the Appellant in Somalia (meaning Article 3 ECHR). He had left Somalia when he was aged just 11. He had not been to Mogadishu for some 18 years. He has not worked. He had mental health problems which were not disputed. The Judge, referred to the large bundle of background material. This highlighted the evidence that those with mental health conditions face considerable stigma and discrimination in Somalia. They can be shackled and chained for months. The Appellant has no clan or family in Somalia, another fact which was not challenged. The mental health was being monitored and dealt with but it fluctuated considerably;
(6) The Judge also carefully considered the deportation issues. Ultimately having considered the various strands, including the Appellant’s mental health difficulties, his reliance on his family here in the United Kingdom, and despite him being an adult meant that Article 8 was engaged. It was essential for there to be continued support for the Appellant for his mental health issues from his family and from the medical practitioners. This attachment with the family members went beyond mere emotional ties. Merely sending remittances from the United Kingdom to Somalia would be entirely inadequate;
(7) The Judge explained in some detail that the Appellant was socially and culturally integrated into the United Kingdom. The public interest inclining towards deportation was clearly and correctly given significant weight by the Judge. She balanced the two sides’ respective cases with that in mind. In the end, she concluded that the specific facts of this case meant that the public interest was outweighed by the cumulative weight of the facts and factors identified.

13. The Upper Tribunal’s decision in Greenwood (No2 (Para 398 considered) [2015] UKUT 00629 (IAC) is particularly relevant in this case:
“16. … The test for unreasonableness, which later became known as perversity, or irrationality, is whether the decision under appeal is one which no person acting judicially and properly instructed on the relevant law could reasonably have made. The restraint which an appellate court must exercise, having regard to these principles, features in the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44. In R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23, Lord Mustill offered the following pithy summary (at 32 – 33):
"In such a case the Court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational."
Decisions which fall "within the permissible field of judgment" do not satisfy this elevated hurdle.
17. ... The test for irrationality has been formulated in a variety of tried and trusted ways. Was it reasonably open to the Judge taking into account all material factors and disregarding everything extraneous to reach the conclusion under challenge? Another formulation is: did his conclusion fall within the band, or range, of conclusions reasonably open and available to him? There is also the repeated admonition to appellate courts and tribunals that what they might have done as a first instance court or tribunal is not in point. Thus while it may be that not every first instance immigration judge would have reached the conclusion under challenge in this appeal this does not vitiate in law the decision.”
14. Fundamentally, the deportation aspect of this appeal entails an immateriality challenge. I conclude that this challenge is not made out. In so far as cessation of refugee status is concerned the Respondent’s focus is on the altered circumstances in the Somalia. Therefore, the focus for the Judge was to consider where there was a real, sustainable change and the availability of sustained state protection. This was explained in SB (Cessation and Exclusion) Haiti [2005] UKIAT 00036 at [28]. Transitory or temporary changes will not suffice. Rather, significant and durable change must be demonstrated. The Judge had to assess whether there was a causal nexus between the change in circumstances and whether it really was impossible for the Appellant to access protection in Somalia. The Judge was also required to make a proper assessment of the conditions of operation of the institutions, authorities and security forces of Somalia and the groups or bodies which, by their action or inaction, may be responsible for possible acts or persecution against the Appellant.
15. In my judgment it is abundantly clear that there was no material error of law. The judge considered the Appellant’s particular circumstances. She properly noted his mental health issues and the detailed and cogent evidence of presented to her. That evidence was largely unchallenged. The Judge also noted that there was specific evidence from the UNHCR which detailed the current state of Somalia and Mogadishu. She indicated with adequate reasoning why she preferred that evidence, alongside the latest background material rather than the decision in MOJ promulgated two years earlier. The Judge specifically considered the Paragraph 399A issues and, after giving considerable weight to the public interest, she concluded that in the circumstances of this case there was sufficient to enable the Appellant’s appeal to be allowed on both protection grounds and Article 8 grounds.

16. Having considered the rival submissions and having gone through the detailed grounds of appeal by the Respondent, it is quite clear that the Respondent has not been able to show that there was a material error of law in the Judge’s decision. The Judge came to a decision which others may not have done, but that does make it an erroneous decision.

17. Indeed, although later cases were not before the Judge as they came after her decision, those too make it clear that the Judge was correct in her approach. The Court of Appeal’s decision in R on the application of Quarey v Secretary of State for the Home Department [2017] EWCA Civ 47 considered the judgment of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60. Irwin LJ with whom the rest of the Court of Appeal agreed said as follows and which is also apt in this case,

“38. I turn to the substance here. It appears to me that the FTT were alive to the proper considerations. They referred directly to the statutory basis of the obligation on the Secretary of State to deport. They can be taken to understand that the statute, and thus the obligation, carry the authority of Parliament. They cited the critical passages from MF (Nigeria) set out above, which spell out the point that such a one as this Respondent will only succeed in avoiding deportation "exceptionally", meaning where there exist "very compelling reasons". The FTT here also had well in mind the terms of the relevant decision by the Appellant. They had a clear view of the facts and the family circumstances. In considering the nature of the public interest in deportation as it affects this case, they made clear that the low risk of future offending was not the only matter of public interest, noting the passage from Judge LJ in N (Kenya) cited above, and emphasising the need for deterrence of others. On that basis, they reached their conclusion.”

18. None of the grounds of appeal are made out. I therefore dismiss the Secretary of State’s appeal.

Notice of Decision

There was no material error of law in the decision of the First-tier Tribunal.
The decision of the First-tier Tribunal is affirmed.
The Secretary of State’s appeal is dismissed.

An anonymity direction is made.

Signed Date: 7 April 2017

Deputy Upper Tribunal Judge Mahmood