Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00112/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 9 March 2017
On 15 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

A A A
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mrs H Aboni, Home Office Presenting Officer
For the Respondent: Mr H Dieu instructed by Duncan Lewis Solicitors

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Respondent (AAA). This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. Although this is an appeal by the Secretary of State, for convenience I will continue to refer to the parties as they appeared before the First-tier Tribunal.
Background
3. The appellant is a citizen of Somalia who was born on 1 January 1990. He came to the United Kingdom on 25 June 2005 when he was 15 years of age to join his adoptive mother, who had been granted refugee status as a member of the minority clan, the Midgan. He was granted refugee status in April 2006.
4. On 1 December 2014, the appellant was convicted at the Ipswich Crown Court of wounding or inflicting grievous bodily harm contrary to s.20 of the Offences against the Person Act 1861 and was sentenced to three years’ imprisonment. As a consequence, on 20 November 2015 the Secretary of State decided that s.32(5) of the UK Borders Act 2007 applied and made a deportation order against the appellant. In doing so, the Secretary of State concluded that, in the light of the appellant’s offending, s.72 of the Nationality, Immigration and Asylum Act 2002 (the “NIA Act 2002”) applied and the Secretary of State issued a certificate under s.72(9) that the relevant presumptions in Art 33(2) to the Refugee Convention apply and that the appellant was not subject to the non-refoulement provision in Art 33(1). In addition, the Secretary of State concluded that the appellant’s refugee status had ceased under Art 1C(5) of the Refugee Convention. Further, the Secretary of State dismissed the appellant’s humanitarian protection claim and human rights claims under Arts 2, 3 and 8 of the ECHR.
The Appeal to the First-tier Tribunal
5. The appellant appealed to the First-tier Tribunal.
6. In a decision sent on 19 October 2016, Judge Fowell concluded that s.72 of the NIA Act did not apply but dismissed the appellant’s appeal on refugee grounds on the basis that it was now accepted that the risk to him on return to Somalia had ceased. Further, the judge found that, because of the appellant’s offending, he was excluded from humanitarian protection. As regard Arts 2 and 3 of the ECHR, the judge found that the appellant’s circumstances on return to Somalia would not breach either Art 2 or Art 3 of the ECHR. However, in respect of Art 8 of the ECHR, the judge found that the appellant’s circumstances were such that they outweighed the public interest reflected in the appellant’s offending. As a consequence, the judge allowed the appellant’s appeal under Art 8.
The Appeal to the Upper Tribunal
7. The Secretary of State sought permission to appeal to the Upper Tribunal on two grounds. First, the judge had wrongly concluded that s.72 of the NIA Act 2002 did not apply. Secondly, in finding in the appellant’s favour under Art 8, the judge had failed to consider whether the appellant on return to Mogadishu, as a minority clan member, would have access to remittances from his UK-based family and also failed to consider why he would be unable to access the economic opportunities and secure a livelihood in Mogadishu.
8. Permission was initially refused by the First-tier Tribunal but a renewed application to the Upper Tribunal was granted limited to the ground in respect of Art 8. Permission was refused in respect of the judge’s decision that s.72 of the NIA Act did not apply. Thus, the appeal came before me.
Discussion
9. It was accepted before Judge Fowell that the appellant was a minority clan member. Judge Fowell also found that there were “very significant obstacles” to his return to Mogadishu but he could not succeed under para 399A of the Immigration Rules (HC 395 as amended) in challenging his deportation under Art 8 because he had not established that he had been lawfully resident in the UK for “most of his life”. Judge Fowell, however, accepted that the appellant had come to the UK when he was aged 15 and was, at the time of the hearing, 26 years of age. Those findings are not challenged.
10. In effect, the Secretary of State’s ground challenges the judge’s reasoning in paras 70-71 of his determination which was in the following terms:
“70. In the present case not only is the public interest less badly affected but there is in my view weighty or exceptional circumstances that have to be considered. They have already been referred to, and in my view go beyond mere “very significant obstacles” to his return, a test which focuses on the practical support available to him.
71. Here, at the risk of repetition, the appellant left Somalia at the age of five. The years of his childhood of which he will retain any distinct memory were all spent in Ethiopia. Despite his mother speaking Somali, he will have lost much other cultural understanding of Somali society and so did not know, until informed, what clan he was nominally from or even which part of the country he came from. He has no friend or family member at all in Somalia. He knows no one and has never lived in Mogadishu. The break of all his existing ties to his parents and to all those he has come to know in the U.K. would be total. He also lacks fluency in Somali, and although not raised I note that his father is now of an age and state of health where it is unlikely that the appellant would see him again if deported. For a near-miss case of this sort, these factors are capable of amounting to very compelling circumstances.”
11. It is important to note the narrow issue raised in the ground and relied upon by the Secretary of State. It is simply this: the judge failed to consider whether the appellant would receive financial support from his family in the UK and failed to explain why he could not take advantage of the economic opportunities arising in Mogadishu to support himself. Reliance is placed upon paras (x) and (xi) of the head note in MOJ and Others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) which is in the following terms:
“(x) It will, therefore 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.
(xi) It will therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable and could therefore be considered fall below that which is acceptable in Humanitarian Protection Terms.”
12. Consequently, it is not suggested that the judge failed properly to consider the public interest or carry out the balancing exercise apart from a failure to consider, in effect, the appellant’s financial circumstances in Mogadishu.
13. Mr Dieu, who represented the appellant, submitted that the judge had, in effect, found that the appellant was a minority clan member, who had no family or other connection in Mogadishu and no access to funds there. He specifically relied upon para 55 of the determination where the judge referred to para (xii) of the head note in MOJ and Others which is in the following terms:
(xii) … On the other hand, relocation in Mogadishu for a person of a minority clan with no former links to the city, no access to funds and no other form of clan, family or social support is unlikely to be realistic as, in the absence of means to establish a home and some form of ongoing financial support there will be a real risk of having no alternative but to live in makeshift accommodation within an IDP camp where there is a real possibility of having to live in conditions that will fall below acceptable humanitarian standards.”
14. There, as can be seen, the UT was concerned with a returnee to Mogadishu who, inter alia, is a minority clan member with no family and no financial support (“no access to funds”).
15. In para 55, the judge said this:
“55. This last paragraph applies squarely to the appellant, in particular the statement that relocation in Mogadishu for a person of a minority clan with no former links to the city, no access to funds and no other form of clan, family or social support is unlikely to be realistic. Had this been an issue over humanitarian protection, in which the lower burden of proof applied, I would have no difficulty in accepting that that was a real risk of serious harm given the complete absence of support available. …” (emphasis added)
16. Mr Dieu is right to point out that the Upper Tribunal in MOJ and Others, in the relevant passage, was considering whether an individual, on return, will be forced into circumstances in an IDP camp which breach Art 3 of the ECHR (see SSHD v Said [2016] EWCA Civ 442 at [31]). Of course, the clan, family or social support available to the individual in Mogadishu is also relevant in assessing whether individual circumstances outweigh the public interest for the purposes of Art 8.
17. In my judgment, there is no doubt that in para 55 the judge found that the appellant would be without any support – financial or otherwise – in Mogadishu as a minority clan member. It does not appear from the determination that the point now raised by the Secretary of State in the ground as to what support, if any, the appellant would receive from his family in the UK was pursued. At para 60, the judge noted that the appellant’s credibility was not challenged and that:
“The only factual dispute is over the degree to which he can speak Somali.”
18. That latter matter, the judge determined partly in favour of the appellant and partly against him on the basis that he presently did not speak Somali as a “native speaker” but would no doubt improve within a short period.
19. As regards the appellant’s family in the UK, his adopted parents were 87 and 88 years old. His adopted mother had a 28-year-old nephew settled in the UK but there does not appear to have been any evidence before the judge (and none was drawn to my attention) that the appellant had any other family in the UK who could potentially support him on return to Somalia. However, it is palpably clear to me that, in the absence of a case pursued by the Secretary of State to the contrary, the judge found that the appellant would have “no access to funds” in Mogadishu (see para 55 quoted above). That finding was properly open to the judge on the evidence.
20. As regards the appellant’s potential for employment, the judge had before him an expert report from Dr Hoehne. At para 30 of the determination, the judge quoted para 14 of the report in which Dr Hoehne stated that:
“30. … It is important to note that economic development is driven by private actors and businesses are family owned. This also means that jobs are distributed largely within patrilineal descent groups or according to other nepotistic networks (related to, e.g., affines or matrilateral relatives). The state hardly has any jobs to distribute besides in the administration and has not the capacity to provide development for the population. It also has no employment policy creating jobs for marginalised groups. In the state administration itself, positions are distributed according to clan-political considerations. Members of majority groups are dividing important positions among themselves.”
21. The appellant, of course, was accepted to be a member of a minority clan.
22. At para 62, albeit in the context of Art 3 of the ECHR, the judge referred to Dr Hoehne’s report and the difficulty that he noted that was likely in the appellant finding employment. The judge, in effect, concluded in para 62 that the appellant had not established that he would be destitute in Mogadishu. Whilst I accept that the judge made no specific finding in the particular context of Art 8, it is again palpably clear that the judge had well in mind the issue of the appellant’s employability and the difficulties that he faced as set out in Dr Hoehne’s report. Carrying out his assessment of the appellant’s circumstances and balancing them against the public interest in paras 70-72, I am unable to conclude that the judge ignored that factor which he had previously specifically referred to and set out in his determination. It was, after all, only a factor to consider under Art 8 together with those set out in detail at para 71. It was, perhaps, of somewhat lesser significance than in respect of the appellant’s Art 3 claim and that he would be forced into an IDP camp.
23. Reading the judge’s determination fairly and as a whole, I am satisfied that he properly took into account all matters relevant to the appellant’s circumstances if returned to Mogadishu. Further, the judge gave sufficient reasons so that it is clear why he found in the appellant’s favour under Art 8.
24. As I have already indicated, the respondent’s ground does not contend that the judge’s finding that the Secretary of State’s decision was disproportionate on the basis that it was perverse or irrational. In my judgment, the limited ground upon which the Secretary of State sought to challenge the judge’s decision is, for the reasons I have given, not made out.
Decision
25. For these reasons, the judge did not materially err in law in allowing the appellant’s appeal under Art 8.
26. Accordingly, the Secretary of State’s appeal to the Upper Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date