Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00082/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 March 2017
On 20 April 2017

Before

UPPER TRIBUNAL JUDGE O’CONNOR

Between

Secretary of State for the Home Department
Appellant
and

ahmed omer
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr C Avery, Senior Presenting Officer
For the Respondent: Not represented

DECISION AND REASONS
Introduction
1. The appellant before the Upper Tribunal is the Secretary of State for the Home Department. For the sake of convenience, I shall refer herein to Mr Omer as the claimant.
2. The Secretary of State has made the following decisions in relation to the claimant;
(i) On 31 December 2003, the claimant, then aged 14, was granted indefinite leave to enter as the dependent of his mother, who had herself been granted the same status as a consequence of being the spouse of a person granted indefinite leave to remain as a refugee (the claimant’s stepfather);
(ii) In a letter dated 5 March 2015 the Secretary of State notified the claimant that she had decided to make a deportation order against him in accordance with Section 32(5) of the UK Borders Act 2007;
(iii) On 12 September 2015, the Secretary of State made a combined decision headed: “Decision to revoke a protection status and refuse a human rights claim”;
(iv) Two days later, on 14 September 2015, the Secretary of State signed a deportation order in the claimant’s name.
3. The decision to deport the claimant, and all that followed, was made by the SSHD as a consequence of (i) the claimant’s conviction at Snaresbrook Crown Court on 2 March 2015 for robbery and breach of conditional discharge, for which he was sentenced to twelve months’ imprisonment, and (ii) his earlier convictions for (a) theft from a person on 13 July 2014 and (b) on 18 August 2014 for possessing a controlled drug of class A and destroying or damaging property - for which he was sentenced to 24 hours at an attendance centre and eighteen months’ conditional discharge, respectively.
4. The claimant brought an appeal before the First-tier Tribunal (“FtT”). Contrary to the understanding of the FtT the claimant did not have a right of appeal against the decision to deport him, this being as a consequence of the amendments to Section 82 of the Nationality, Immigration and Asylum Act 2002 brought about by Section 15 of the Immigration Act 2014 (which came into force on 20 October 2014). He was, however, entitled to, and did, bring an appeal against both decisions made by the Secretary of State identified in her letter of 12 September 2015.
5. In summary, the FtT concluded that:
(i) The SSHD was entitled to revoke/cease the claimant’s refugee status [105] to [109];
(ii) The claimant was not entitled to a grant of humanitarian protection [110] - [117]
(iii) There were no substantial grounds for believing that on return to Mogadishu the claimant would face a real risk of persecution or ill-treatment of such severity so as to cross the Article 3 ECHR threshold [110] to [117];
(iv) The claimant does not meet the requirements of paragraph 399A of the Immigration Rules [118];
(v) The claimant does not meet the requirements of paragraph 399(b) of the Rules [125];
(vi) The claimant’s deportation would breach Article 8 ECHR [119] to [126].

Error of Law – A Summary
6. The Secretary of State appealed to the Upper Tribunal, with the permission of First-tier Tribunal Judge Page, against the FtT’s decision allowing the claimant’s “appeal against deportation on human rights (Article 8) grounds”. By way of a decision promulgated on 11 October 2016 I set aside the determination of the FtT for the following reason:
“[30] Looking at the decision of the FtT as a whole, it is clear that the Tribunal takes into account a number of immaterial matters and fails to adequately reason why a number of other matters have been taken into account in the claimant’s favour. In all the circumstances, I find that the FtT’s decision on Article 8 ECHR contains an error of law capable of affecting the outcome of the appeal and I, therefore, set it aside.”
7. I directed that the decision be re-made by the Upper Tribunal and that the scope of the remaking be limited to (a) Article 8 ECHR grounds and (b) a consideration of the lawfulness of the Secretary of State’s decision to revoke refugee status in light of the conclusions in Dang (refugee – query revocation – Article 3) [2013] UKUT 00043.
Re-making of Decision under Appeal
8. Regrettably the re-making of the decision under appeal has been delayed because of the necessity to adjourn the hearing listed for 1 December 2016 as a consequence of, inter alia, the late withdrawal of the claimant’s legal representatives, the claimant having indicated a wish to find alternative representation. It appears that thereafter the claimant re-engaged the same solicitors. A notice of hearing was sent to these solicitors on 6 February identifying the 17 March as the date set for the hearing of the appeal. However, by way of a letter received by the Tribunal on 9 March 2017, these representatives once again notified the Tribunal that they had withdrawn their representation of the claimant and would not be attending the hearing.
9. The claimant attended the hearing of 17 March in person. No application for an adjournment was made and the claimant indicated that he was not able to pay for legal representation. In all the circumstances, and having considered the overriding objective set forth in the 2008 Procedure Rules, I concluded that it was appropriate to proceed with the hearing.
Scope of re-making
10. As identified above, the scope of the hearing was limited to a consideration of (a) Article 8 ECHR, which must incorporate within it a consideration of the relevant Immigration Rules, and (b) the lawfulness of the Secretary of State’s decision to revoke refugee status in light of the conclusions of the Tribunal in Dang (refugee – query revocation – Article 3) [2013] UKUT 00043 (the ‘Dang issue’).
11. The FtT dismissed the claimant’s appeal on Article 3 ECHR and humanitarian protection grounds, and further concluded that the claimant does not have a well-founded fear of being persecuted in Somalia. These findings have not been the subject of appeal and nothing in the evidence before me leads me to conclude that it is appropriate to re-open these matters.
The Law – Article 8
12. Section 32 of the UK Borders Act 2007 provides that for certain categories of foreign criminal, including those convicted in the United Kingdom of an offence and sentenced to a period of imprisonment of at least 12 months, their deportation "is conducive to the public good" for the purposes of section 3(5)(a) of the Immigration Act 1971 (section 32(4)). Subject to what is said in section 33, it is obligatory for the Secretary of State to make a deportation order in respect of such persons (section 32(5)).
13. Section 33 of the 2007 Act provides exceptions to the aforementioned obligation, including in circumstances where removal of the foreign criminal would breach a person's Convention rights (section 33(2)(a)).
14. Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
15. Part 5A of the Immigration Act 2014 amended the Nationality, Immigration and Asylum Act 2002, to include the following:
“PART 5A
Article 8 of the ECHR: public interest considerations
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.

117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

117D Interpretation of this Part
(1) In this Part—
…
‘qualifying partner’ means a partner who—
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act).
(2) In this Part, ‘foreign criminal’ means a person—
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who—
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.
16. The Immigration Rules read:
“Deportation and Article 8
A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”
17. In Hesham Ali v SSHD [2016] UKSC 60, [2016] 1 WLR 4799) the Supreme Court had its first opportunity to survey the Article 8 landscape after the sweeping changes to the Immigration Rules brought forth in 2012 and in July 2014. The Court of Appeal summarised the effect of the decision in Hesham Ali in the following terms in its recent decision of EJA v SSHD [2017] EWCA Civ 10:
[12] In the judgment of the court delivered by Lord Dyson MR he described (paragraph 35 et seq.) a structured approach to determining an article 8 question by reference to the Rules. The first step was to determine whether the person concerned fell within paragraph 398(a), (b) or (c). If he fell within paragraphs (b) or (c), then it became necessary to consider paragraphs 399 and 399A. Even in such cases, if the person concerned could not bring himself within those two further paragraphs, deportation might nonetheless be resisted on article 8 grounds but, as paragraph 398 provides, "it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors." Foreign criminals who fall within paragraph 398(a) (i.e. those who were sentenced to a period of imprisonment of at least four years) were unable to rely upon the terms of paragraphs 399 and 399A. In their cases it would only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors, any of which relevant for article 8 purposes may fall to be considered.
[13] In paragraph 40 this court accepted a submission on behalf of the Secretary of State:
"That the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign national criminals who do not satisfy paragraphs 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under Article 8(1) trump the public interest in their deportation."
[14] In paragraph 43 Lord Dyson MR concluded:
"The word 'exceptional' is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the 'exceptional circumstances'."
[15] He added in paragraph 44 that the new rules provided a complete code but continued in paragraph 45:
"Even if we were wrong about that, it would be necessary to apply a proportionality test outside the new rules as was done by the UT. Either way, the result should be the same. In these circumstances, it is a sterile question whether this is required by the new rules or it is requirement of the general law. What matters is that it is required to be carried out if paras 399 or 399A do not apply."
[16] The central issue in the Hashem Ali case was whether the general rule identified by Lord Dyson in paragraph 43 of his judgment was correct. Lord Reed, with whom Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes and Lord Thomas agreed, confirmed at paragraph 38 of his judgment, as did Lord Wilson expressly at paragraphs 66 and 81, that it was:
"The implication of the new rules is that rules 399 and 399A identify particular categories of case in which the Secretary of State accepts that the public interest in the deportation of the offender is outweighed under article 8 by countervailing factors. Cases not covered by those rules (that is to say, foreign offenders who have received sentences of at least four years, or who have received sentences of between 12 months and four years but whose private or family life does not meet the requirements of rules 399 and 399A) will be dealt with on the basis that great weight should generally be given to the public interest in the deportation of such offenders, but that it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in SS (Nigeria). The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State. The Strasbourg jurisprudence indicates relevant factors to consider, and rules 399 and 399A provide an indication of the sorts of matters which the Secretary of State regards as very compelling. As explained at para 26 above, they can include factors bearing on the weight of the public interest in the deportation of the particular offender, such as his conduct since the offence was committed, as well as factors relating to his private or family life. Cases falling within the scope of section 32 of the 2007 Act in which the public interest in deportation is outweighed, other than those specified in the new rules themselves, are likely to be a very small minority (particularly in non-settled cases). They need not necessarily involve any circumstance which is exceptional in the sense of being extraordinary (as counsel for the Secretary of State accepted, consistently with Huang [2007] 2 AC 167, para 20), but they can be said to involve "exceptional circumstances" in the sense that they involve a departure from the general rule."
[17] At paragraph 50 Lord Reed concluded:
"The critical issue for the Tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed – very compelling, as it is put in MF (Nigeria) – will succeed."
[18] The issue of whether the rules were a "complete code" was argued before the Supreme Court. Lord Reed explained (paragraphs 17 and 53) that save in cases where an appeal is brought on the basis that the decision of the Secretary of State was not in accordance with the rules, those rules are not a complete code which, as a matter of law, governed the determination of appeals. He continued:
"The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. In particular, tribunals should accord respect to the Secretary of State's assessment in the strength of the public interest in the deportation of foreign offenders, and also consider all factors relevant to the specific case before them … It remains for them to judge whether, on the facts as they have found them, and giving due weight to the public interest in deportation in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate."
[19] It is abundantly clear that Hashem Ali has not lowered the significant hurdle which must be overcome by a foreign criminal to succeed in demonstrating that it would be disproportionate to deport him from the United Kingdom.”

Decision and Discussion
18. The following findings of primary fact from the FtT’s decision are preserved:
(i) The claimant is a national of Somalia born in December 1989, and is a member of the Darod clan. He does not recall living in Mogadishu;
(ii) The claimant remains in occasional contact with his blood father, who resides in London;
(iii) The claimant left Somalia in 1991 – his mother taking him to Ethiopia. The claimant’s mother and step-father (from the Isaaq clan in northern Somalia) met in a refugee camp in Ethiopia in 1993. They married the same year, but split in 2005;
(iv) The claimant’s step-father came to the UK in 1995 and was granted exceptional leave to remain. On 6 March 2001, the claimant’s step-father was granted indefinite leave to remain as a refugee;
(v) The claimant and his mother entered the UK in March 2004, having been granted indefinite leave to enter as the dependents of the claimant’s step-father (an appeal against a refusal of entry clearance having been allowed by the Asylum and Immigration Tribunal);
(vi) On 13 July 2012, the claimant was convicted of theft from a person (an offence committed on 6 July 2009) and required to attend an attendance centre for 24 hours and to pay £15 compensation;
(vii) On 18 September 2014, the claimant received a conditional discharge for possession of a Class A drug, and a further conditional discharge (and £350 compensation) for an offence under the Criminal Damage Act 1971;
(viii) On 2 March 2015, the claimant was sentenced to twelve months’ imprisonment for a robbery (street mugging) which had taken place on 29 August 2014;
(ix) If the claimant were to return to Mogadishu, “family members here would ensure that [he] received sufficient financial support in Mogadishu so as not to be forced to live in a state of destitution” [117];
(x) The claimant is socially and culturally integrated in the UK [118];
(xi) The claimant is not a devout Muslim;
(xii) The claimant continues to drink alcohol;
(xiii) The claimant has been in a genuine and subsisting relationship with Ms Nuur, a Dutch national, for 5 years. They are not married and have never co-habited. They share an intention of getting married in the future. The effect of deportation would destroy the private and family life the claimant and Ms Nuur have built up;
(xiv) The claimant can speak English;
(xv) The claimant is not a burden on the taxpayer and there is a reasonable prospect of him finding employment in the UK;
(xvi) The claimant was, at the time of the FtT’s decision, genuinely remorseful;
19. An OASys report was prepared in relation to the claimant on 1 September 2015. I do not re-iterate all that is said in this regard at [40] to [53] of the FtT’s decision (which I adopt), but it is necessary to refer to the following salient features:
(i) “There was a pattern of offending when intoxicated, of being motivated by financial gain, and of offending in groups.”
(ii) The claimant lives at home with his mother and younger brother;
(iii) The claimant attended a one-year college course in construction (including bricklaying) between January and July 2012 (Edexcel BTEC level 1), and has also achieved level 1 NVQ in health and social care (in later evidence the claimant demonstrated that he had also received: (a) a level 2 award in Food Safety and Catering issued by the Institute of Environmental Health; (b) three credits at level 1 in customer service skills; (c) a certificate for training as a lift truck operator (d) certificate of training confirming attendance at a course of basic lift chopper operator and (e) a Pearson level 1 Certificate in Warehousing and Storage;
(iv) Prior to his imprisonment the claimant was routinely using cannabis and cocaine and would drink alcohol heavily once per month;
(v) The claimant poses a medium risk of serious harm to the public and could reduce such risk by abstaining from alcohol.
(vi) The “probability of proven re-offending was low”;
20. For the purposes of the re-making I was provided with both further documentary, and oral, evidence by the claimant. No other witnesses attended the hearing on the claimant’s behalf.
21. Having considered the evidence as a whole I make the following further findings on the balance of probabilities:
(i) On 9 September 2016, the claimant entered a guilty plea to a charge brought under section 16 of the Offences Against the Person Act (threats to kill, on 25 August 2016). He was sentenced to 12 months’ imprisonment, wholly suspended for 12 months. The claimant was intoxicated when he committed this offence;
(ii) Despite the claimant’s protestations to the contrary I conclude that he cannot now be categorised as being at low risk of re-offending. This latest offence was committed during the course the claimant’s immigration appeal proceedings, and with him having at least some insight into the fact that consumption of alcohol leads him to behave in a manner which is not acceptable. Despite having such incite, and being aware of the possibility of impending deportation, the claimant became intoxicated and committed a further serious offence;
(iii) On the claimant’s own evidence, his mother speaks very little English and the claimant speaks to his mother in Somali. I therefore conclude that the claimant has at least a reasonable grasp of the Somali language;
(iv) The claimant has a significant private life in the United Kingdom made up of a network of close friends, his family members in the UK (including his mother, father, step-father, younger brother, cousins, aunts and grandmother), his employment and study history, as well as and his unparticularised general integration into life in the United Kingdom;
(v) The claimant has established a family life in the United Kingdom with Ms Nuur, as was described by the FtT in its decision.
22. The claimant asserted in oral evidence that his relationship with Ms Nuur had recently been cemented by the news that Ms Nuur is two months pregnant with his child. It was said that she could not attend the hearing before the Upper Tribunal because of sickness and mental health issues. Ms Nuur’s mother resides in London.
23. I reject the claimant’s assertions that Ms Nuur is pregnant with his child. No explanation has been provided as to why the claimant failed to produce evidence of Ms Nuur’s pregnancy, other than his own oral testimony. It is reasonable to expect the claimant to have obtained evidence from Ms Nuur’s GP in this regard. Furthermore, even if Ms Nuur was unable to provide oral evidence to the Tribunal, a witness statement could have been, but was not, drawn up in support of the claimant’s latest assertions. Furthermore, there is no evidence of the nature and extent of Ms Nuur’s claimed mental health issues; in particular, no evidence is produced that she has insufficient understanding or capacity to draw up a statement in support of the claimant’s appeal. I further observe that the claimant was legally represented until on, or around, 8 March 2017.
24. In any event, even if Ms Nuur is pregnant with the claimant’s child, as claimed, this additional feature would not have led me to come to a different conclusion as to the outcome of this appeal. There is no evidence that Ms Nuur is, or would become, dependent on the claimant either financially or on any other basis – even after the child is born. It is prudent for me to observe that this stage that there is no evidence before me that the claimant has sought, or has ever had, an EEA Residence Card as a consequence of his relationship with Ms Nuur. The circumstances pertaining in this case are not such that the claimant is entitled to remain under EU law simply because of his relationship with an EEA national. At best, he is an extended (other) family member and, consequently, only the issuing of a residence card would provide a right to remain on the basis of EU law. This would require an application to the SSHD and for the SSHD to exercise her discretion in the claimant’s favour – none of which has thus far occurred.
Article 8 ECHR
25. Moving on in my Article 8 considerations, I have no hesitation in concluding that removing the claimant to Somalia would bring about an interference with his private and family life in the UK of such gravity that Article 8 is engaged.
26. Turning then to a consideration of the ultimate question in this appeal, whether deportation would be proportionate to the public interests in play. It is first necessary to consider the application of the Immigration Rules, these being an expression of where the SSHD identifies that the public interest lies. Tribunals are instructed to give considerable weight to such policy statements: Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 at [46]. The terms of the Immigration Rules materially align with those of paragraph 117C of the 2002 Act, which I am required to have regard to in any event when considering the proportionality of deporting a foreign criminal.
27. The claimant was sentenced to a term of imprisonment of at least 12 months and, therefore, falls within the confines of paragraph 398(b) of the Rules. Consequently, I am required to turn to a consideration of paragraphs 399 and 399A of the Rules (which are materially aligned in terms of their requirements with sections 117C(4) and 117C(5) of the 2002 Act).
28. As already identified above, the FtT concluded that the claimant did not meet the requirements of these Rules. I concur. As to paragraph 399(a), the claimant does not claim to have a genuine and subsisting relationship with a relevant child and he therefore falls at the first hurdle. Paragraph 399(b) is not engaged as a consequence of the FtT’s conclusion that the claimant does not have a genuine and subsisting relationship with a British Citizen, or settled, partner (as was accepted by the claimant’s counsel before the FtT [125]). This is undoubtedly correct because on the evidence available Ms Nuur dos not meet the relevant definition of a qualifying partner.
29. Moving on to paragraph 399A of the Rules, whilst I accept the FtT’s finding that the claimant is socially and culturally integrated into the UK (paragraph 399A(b)), the claimant has clearly not spent ‘most of his life’ lawfully resident here (paragraph 399A(a)). Therefore, he also falls short in his attempts to meet the requirements of this Rule.
30. As to paragraph 399A(c), I have already concluded the FtT’s finding that there would be very significant obstacles to the claimant’s integration into Somalia is vitiated by legal error (see Error of Law decision of 11th October 2016).
31. Although a further review of this consideration, even if favourable to the claimant, could not result in the requirements of the paragraph 399A being met, for the reasons identified above it is nevertheless prudent for me to undertake such an assessment because a conclusion in relation thereto is relevant to an assessment of whether the claimant’s removal would be proportionate.
32. The threshold in paragraph 399A(c) is formed of two identifiable limbs - “integration” and “very significant obstacles”. In Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813, the Court of Appeal concluded that “integration” in this context is a broad concept. See [14]:
“It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a Court or Tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day to day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life”.
33. The second component part, “very significant obstacles”, self-evidently erects an elevated threshold, such that mere hardship, difficulty, or inconvenience will generally be insufficient in this context.
34. As has already been identified above the FtT found the circumstances that would meet the claimant upon return to Mogadishu would not be such so as to put him at risk of suffering Article 3 ECHR ill treatment. He will not, it was found by the FtT, be destitute in Somalia because, on the balance of probabilities, his UK based relatives would provide sufficient funds to prevent that occurring. There is nothing in the evidence before me that leads me to a different conclusion.
35. In any event, I find that the claimant would be able to find employment in Mogadishu. The circumstances pertaining in Mogadishu were the subject of detailed consideration by a Presidential panel of the Upper Tribunal in the country guidance decision of MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) – a decision recently upheld by the Court of Appeal. The Tribunal, in paragraph (x) of its headnote in MOJ, materially observed:
“…it will be for the person facing return to explain why he would not be able to access the economic opportunities that have been produced by the economic boom, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away.”
This feature of the changed economic situation in Mogadishu was emphasised still further in the following terms during the course of the Tribunal’s decision:
“…returnees from the West may have the advantage in seeking employment in Mogadishu over citizens who have remained in the city throughout. This is said to be because such returnees are likely to be better educated and considered more resourceful and therefore more attractive as potential employees, especially where the employer himself or herself has returned form the diaspora to invest in a new business.
…the evidence discloses no reason why a returnee would face discriminatory obstacles to competing for…employment” [paragraphs 351 and 352 of MOJ]
36. The claimant is a fit and healthy male and is certainly physically capable of undertaking employment in his home country. I accept that he would have no connections in Mogadishu immediately upon his return there, given the length of time he has been away from the city and his age when he last left, but he speaks the language and has a significant skill set as demonstrated by the large number of practical and useful qualifications he had accumulated during his time in the UK. In all the circumstances, I conclude that the claimant would not have serious difficulties in obtaining employment in Mogadishu and, as indicated above, he would be maintained by his UK based relatives whilst undertaking his search in this regard.
37. Much was made before the FtT of the fact that the claimant drinks alcohol, often excessively, and is westernised to the extent that his likely behaviour if returned to Mogadishu will be far from the norm – including engaging in relationships outside of marriage. He has become “habituated to the liberal lifestyle and attitudes which are prevalent in western society.” In addition, the claimant is not “a devout Muslim”.
38. When considering the relevance that such personal circumstances would have on the abilities of the claimant to integrate upon return, I have taken heed, in particular, of the (very limited) background evidence before me, the findings of the Tribunal MOJ (which I do not repeat herein but have had full regard to), as well as those set out in the reported decision of AAW (expert evidence –weight) Somalia [2015] UKUT 00673 (IAC). In particular, I observe that at paragraph 60 of AAW the Tribunal identified that the appellant therein had been “unable to refer …to any evidence of compulsory or even encouraged attendance at mosque, or even of disapproval of those who do not”. There is nothing before me that leads me to conclude that the position in this regard is otherwise than that set out in AAW. The evidence before me does not disclose that the claimant would face serious difficulties in integrating into Somalia because he drinks alcohol or behaves in a manner which, it is said, is more akin the behaviours displayed in western societies.
39. In coming to this conclusion, I have had particular regard to the document provided by the claimant printed from the Wikitravel website (last ‘modified’ on 17 December 2015), which reads:
“Islam forbids alcohol and Somalia follows this rather strictly. If you do find some, don’t show it or drink in public, as there is a strong chance that you could offend, cause a scene and may even be punished by the authorities.”
The information provided in this document is unsourced, limited, and vague and I attach little weight to it. There is no other material evidence before me to similar effect.
40. Having taken full account of all the features of the claimant’s personal circumstances, and considered them in light of the length of time the claimant has been away from Somalia, the age that he left, his lack of familial connection to persons in that country, as well as the background circumstances that pertain in the country itself, whilst I accept life there would be more difficult for the claimant than it is in the United Kingdom I do not accept it has been established to the balance of probabilities that there would be very significant obstacles to the claimant integrating into Somalia.
41. Since the claimant cannot bring himself within the scope of paragraph 399 or 399A of the Immigration Rules, he is required, under the Immigration Rules, to demonstrate - in accordance with paragraph 398 - that there are very compelling circumstances why he should be allowed to remain in the UK. This is a requirement aligned with that identified in section 117C(6) of the 2002 Act.
42. I have had full regard the extent and nature of the claimant’s private and family life in the United Kingdom, and observe that he has had indefinite leave to remain since his arrival. I proceed on the basis that the claimant’s relationship with Ms Nuur will effectively be severed by his deportation. It is not said, however, that she is financially or emotionally dependent on him, and insofar as she is emotionally attached to him there is no evidence that her mental health will suffer significantly as a consequence of his deportation. I observe that her mother lives in the United Kingdom and would be available to support Ms Nuur should she require such support.
43. As to the claimant’s relationship with his family members in the United Kingdom, this will, upon deportation, be limited to communication over the phone or data networks. There is no evidence that this will lead to any significant adverse consequences for any of these family members, or the claimant, other than the immediate distress caused by the claimant’s departure. None of the claimant’s family members are dependent financially or emotionally on him.
44. The public interest is especially potent and will be outweighed only by an Article 8 claim which is “very strong indeed – very compelling”: per Lord Reed at [50] of Hesham Ali. It seems to me that the proportionality of the claimant’s deportation, and whether there are very compelling circumstances why he should be allowed to remain, must also be considered in this case in the context of the ECtHR’s judgment in Maslov v Austria no 1638/03 [2008] ECHR 546; in particular, its conclusion that in relation to a settled migrant of the kind described therein “very serious reasons are required to justify expulsion”. This is of relevance in the instant appeal given that claimant arrived here with indefinite leave to enter as a minor.
45. However, this guidance must be now be considered within the framework of the Rules. As the Court of Appeal said in AJ Angola [45-46] “due respect” must be given to the guidance given in Maslov “but as a matter to be brought into the overall assessment and balanced against the strong public interest in deportation which the UK Borders Act 2007 and the new rules give expression”. This is the approach I have taken in the instant case.
46. Having considered all of the relevant circumstances of this case, including the guidance given in Maslov, that the claimant arrived here as a minor, that has spent a significant part of his life here, that he has substantial familial connections to the United Kingdom and no familial connections within Somalia, that he has not been to Somalia since he was a small child, the general circumstances that will pertain upon his return to Somalia, the risk of the claimant re-offending, I am not satisfied that there are very compelling circumstances that outweigh the strong public interest in the claimant’s deportation.
47. There is nothing further in the claimant’s circumstances that can have a material impact on the proportionality balance and in all the circumstances I am satisfied that the claimant’s deportation is proportionate. The claimant’s appeal on Article 8 ECHR grounds is therefore dismissed.
The “Dang Issue”
48. There is one further issue that requires my consideration, which I have labelled above as the ‘Dang issue’.
49. The SSHD accepts that the claimant entered the United Kingdom with indefinite leave to enter as a refugee in March 2004, albeit it appears as the family member of his step-father. The SSHD’s decision letter of 13 September 2015 is headed “Decision to Revoke a Protection Status and Refuse a Human Rights Claim”. Internally within this decision letter one finds the heading “Consideration of revocation of protection status”. The consideration thereafter culminates in the following conclusion [38]:
“In light of the above, it has been decided to cease your refugee status in view of the fact that Article 1C(5) of the 1951 Refugee Convention and subsequently paragraph 339A(v) of the Immigration Rules, now applies…”
50. Paragraph 339A(v) of the Immigration Rules mirrors the cessation clause in Article 1C(5) of the 1951 Refugee Convention, which provides that the Refugee Convention shall cease to apply to a person “if he can no longer, because of circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of nationality”. However, by the operation of paragraph 339A(v) the SSHD purports to revoke the claimant’s refugee status.
51. In Dang (Refugee – query revocation – Article 3) [2013] UKUT 43 (IAC) the Upper Tribunal concluded:
“A decision to revoke or refuse to renew a grant of asylum under paragraph 339A of the Immigration Rules only relates to the individual's status under the Qualification Directive (European refugee status) and not his status under the Refugee Convention; further, it can only apply to cases in which the asylum application was made on or after 21 October 2004 and at least one of the provisions in sub-paragraphs (i)-(vi) of para 339A of the Immigration Rules applies.
If an individual was granted refugee status some time ago, there is no legal or evidential presumption that, for so long as he is a refugee under the Refugee Convention, removal would be in breach of Article 3. Whilst the past may be relevant in shedding light on the current situation and the prospective Article 3 risk, it remains the case that the question whether there is a real risk of Article 3 ill-treatment must be answered at the date of the hearing and is forward-looking.”
52. Following the reasoning in Dang the SSHD plainly had no power to revoke the claimant’s refugee status pursuant to paragraph 339A of the Rules because it was granted prior to 21 October 2004. However, whilst the claimant has an appeal against the decision to revoke his protection status he cannot deploy the ground that such decision was not in accordance with the law. The grounds that can be deployed are limited by section 84(3) of the 2002 Act to the following:
“(3) An appeal under Section 82(1)(c) (revocation of protection status) must be brought on one or more of the following grounds -
(a) that the decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations under the Refugee Convention;
(b) that the decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection.”
53. On the findings of the First-tier Tribunal (with which I concur) there is no room for dispute that the SSHD was correct in her conclusion that Article 1(C)(5) applies to the claimant’s circumstances. In such circumstances, I conclude that the SSHD’s decision to revoke the claimant’s refugee status, albeit unlawful for the reasons given above, does not lead to a breach of the United Kingdom’s obligations under the Refugee Convention.
54. Furthermore, following the rational in Dang (as approved by the Court of Appeal in RY (Sri Lanka) [2016] EWCA Civ 81) whether the claimant, as a matter of fact, has historically been granted the status of a refugee is not a matter which materially infringes on the assessment of whether he is now entitled to humanitarian protection or of whether his deportation would breach Article 3 ECHR. There is no legal or evidential presumption in favour of the claimant that flows from the fact that he has refugee status.
55. The claimant’s appeal against the decision to revoke his refugee status is therefore dismissed.

Decision
The Decision of the First-tier Tribunal is set aside.
Mr Omer’s appeal is dismissed on all grounds

Signed:

Upper Tribunal Judge O’Connor
Dictated: 4 April 2017