Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: rp/00120/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 July 2016
On 03 August 2016

Before

UPPER TRIBUNAL JUDGE GOLDSTEIN

Between

THE Secretary of State FOR THE HOME DEPARTMENT
Appellant
and

H M B
(ANONYMITY DIRECTION PRESERVED)
Respondent

Representation:
For the Appellant: Mr S Kotas, Home Office Presenting Officer
For the Respondent: Mr R Khubber, Counsel, instructed by Messrs Turpin & Miller LLP

DECISION AND REASONS

1. This is an appeal by the Appellant (hereinafter called the Secretary of State) against the decision of First-tier Tribunal Judge Burnett who, sitting at Newport on 17 March 2016 and in a decision subsequently promulgated on 7 April 2016, allowed the appeal of the Respondent (hereinafter called the claimant), a citizen of Yemen born on 15 November 1978, against the decision of the Secretary of State dated 8 December 2015 but solely under Article 3 of the ECHR.

2. It follows that the First-tier Tribunal Judge upheld the Secretary of State's Section 72 certificate, finding that the claimant had not rebutted the presumption that he was a danger to the community and that as such, he was not entitled to protection under the Refugee Convention or to Humanitarian Protection.

3. In that regard the Secretary of State had concluded that in light of the claimant's conviction on 10 January 2014 at Guildford Crown Court of three counts of supplying a Class A drug - Crack Cocaine, for which he was sentenced to three years and four months' imprisonment and the claimant's subsequent failure to rebut the presumption that his continued presence in the United Kingdom would constitute a danger to the community, the Secretary of State was entitled to certify in accordance with Section 72(9)(b) of the Nationality, Immigration and Asylum Act 2002 (as amended) that the presumption under Section 72(2) applied to the claimant such that he was excluded from the protection of the Refugee Convention.

4. By virtue of Article 33(3) of the Refugee Convention, the Secretary of State further concluded that the claimant's removal to Yemen would not result in the United Kingdom being in contravention of its obligations under Articles 2 and 3 of the ECHR.

5. The brief immigration history of the claimant is that he arrived in the United Kingdom on 19 November 1995 and claimed asylum and was granted refugee status and leave to enter until 4 November 2000. On 3 November 2000 the claimant applied for indefinite leave to remain which was granted on 11 April 2001.

6. On 25 July 2007 at Knightsbridge Crown Court the claimant was convicted of supplying a Class A drug, namely Heroin, and sentenced to three years' imprisonment.

7. On 9 January 2008 the Secretary of State notified the claimant of his liability to be excluded from the Refugee Convention under Section 72. On 14 October 2008 the claimant was served with a decision to make a deportation order and to cease his refugee status. That decision was made on the basis that at the time, there had been a durable change in the country situation in Yemen. As no appeal was lodged against the decision, a deportation order was signed against the claimant on 23 December 2008 and he was served with the decision on 27 December 2008.

8. On 4 February 2009 the claimant lodged an out of time appeal against the deportation decision and was allowed to proceed and on 7 April 2009 the appeal was allowed on Article 8 of the ECHR grounds but that decision was overturned and the appeal dismissed on 19 October 2009.

9. On 9 November 2009 the claimant requested to be returned to Yemen under the Facilitated Returns Scheme (FRS) and that request was approved on 8 December 2009.

10. On 25 January 2010 the claimant was refused permission to appeal against his dismissed appeal.

11. On 5 February 2010 the claimant was withdrawn from FRS for failing to sign a disclaimer. His appeal rights then became exhausted on 11 April 2010.

12. The claimant then failed to maintain reporting requirements and was circulated as an absconder on 21 January 2013. He next came to light on 20 December 2013 when he was arrested for drugs offences.

13. As mentioned, the claimant on 10 January 2014, was further convicted (see above) and he did not appeal the sentence imposed upon him.

14. On 2 December 2014 the claimant again requested to be removed under FRS but on 17 December 2014 he was withdrawn from FRS on the basis of his submissions where the claimant had claimed to be "stateless" and requested that he be treated as a refugee.

15. On 24 June 2015 the claimant was notified of his liability to be excluded from the Refugee Convention under Section 72 of the NIA 2002 to which he responded by expressing his fear of return to Yemen.

16. In summary, the grounds upon which the Secretary of State successfully sought and obtained permission to appeal submitted that the First-tier Tribunal Judge materially erred in law in allowing the appeal under Article 3 by failing to deal with the reasons advanced in the Reasons for Refusal Letter and resolve matters of conflict. Further the First-tier Tribunal Judge failed to consider the Country Information (COIS) on Yemen dated November 2015 "and failed to give adequate reasons for departing from this and as such erred in finding the return of the Appellant to Aden would breach the Appellant's Article 3 rights".

17. The grounds referred inter alia, to the fact that whilst in April 2015 the UNHCR called for countries to suspend the forcible returns of nationals and residents of Yemen, that since August 2015 there had been notable increases in food, fuel and building material to cities in the south that included Aden, the control of which had been taken back from Houthi militias by coalition forces and was now in the hands of the government.

18. As such, it was claimed, the humanitarian situation in Aden (and some areas in southern Yemen) whilst severe, did not in general breach Article 3.

19. The grounds contended that whilst the Judge noted the above, he failed to apply this to his findings when determining the appeal.

20. The grounds further contended that the judge was wrong to conclude that the indiscriminate violence in Yemen was at such a level that substantive grounds existed that a person, solely by being present there, faced the risk of harm that threatened his life or person and that in consequence the claimant's rights under Article 15(c) of the Qualification Directive would also be breached. It was submitted that again the Judge failed "to have adequate regard to the country information which provides this would not be the case as the current situation in Aden is much more stable". The grounds proceeded to identify the background material that it was claimed, demonstrated this to be the case, including that which was contained in the Letter of Refusal.

21. It was contended for example, that though the evidence showed that Aden had become increasingly stable since July 2015 when the city was cleared of Houthi rebels and the government was slowly restoring law and order supported by the UAE and that the Judge appeared "to attach little significance or weight to this".

22. Further, whilst the Judge found that the claimant's father's profile would attract attention to the claimant, it was overlooked that there had been a general amnesty in Aden "and that the (claimant's) father had not been listed among the sixteen who were being tried in absentia" and thus "the (claimant) had not demonstrated a profile that would attract adverse attention from the pro-government forces or deny him protection from the Houthi rebels or any other insurgent to any lesser degree than any other Yemeni citizen living in Aden. The First-tier Tribunal Judge had thus failed to address this or the other issues raised in the Reasons for Refusal Letter adequately and had thus failed to address these material matters before making his findings.

23. Immediately prior to the hearing of the appeal before me, the Tribunal received the claimant's Rule 24 Notice. It was noted that the Secretary of State sought to challenge the decision of the First-tier Tribunal Judge in relation to allowing the claimant's Article 3 and Article 8 claims. I pause there, because at the hearing there was common ground between myself and the parties, that were I to find no material error of law in the Judge's approach and findings in relation to Article 3, issues relating to Article 8 would fall away and need not be further considered. Indeed the Rule 24 Notice acknowledged that to be the case in stating that the challenge to the Article 8 claim rested on the challenge to the Article 3 claim.

24. The Rule 24 Notice continued that upon a consideration of the Secretary of State's grounds, they were in effect, simply a disagreement with the conclusions legitimately reached by the Judge on the evidence before him and thus did not constitute a basis for setting it aside.

25. It was submitted that the Judge's consideration of the evidence and reasoning for his conclusions was "set out with considerable care and detail in relation to each material aspect of the appeal for the purposes of this challenge by the SSHD." As to Article 3 ECHR, the Judge was well aware of the country evidence provided to him by both parties when he reached his conclusions, as applied to the circumstances of the Appellant. The various paragraphs of the determination were cited by way of example.

26. It was thus maintained that there was no material error of law in relation to the aspects of the appeal upon which the claimant's appeal was allowed under Articles 3 and 8 and whilst another Tribunal might have reached another decision on the evidence, that was not relevant to the question of whether a material error of law had been established in the Judge's decision under challenge.

27. In that regard reference was made to Mukarkar [2006] EWCA Civ 1045 where at paragraph 40 Carnwath LJ (as then was) who gave the leading judgment had this inter alia to say:

"Factual judgments of this kind are often not easy but they are not made easier or better by excessive legal or linguistic analysis. It is of the nature of such judgments that different Tribunals, without illegality or irrationality may reach different conclusions on the same case."

28. It was thus submitted that as to any allegation of inadequate reasoning, these were misplaced and the claimant further relied on the observations in R (Iran) [2005] EWCA Civ 582 at paragraph 13.

29. Having listened with care to the parties' respective submissions I reserved my decision.

Assessment

30. I have concluded that the decision of the First-tier Tribunal Judge insofar as it relates to the reasons he gave for allowing the claimant's appeal under Articles 3 and 8 disclose no material error of law.

31. It was notable that at the outset of the hearing (given that it was the Secretary of State's position that the country evidence/background material before the First-tier Tribunal Judge had not been properly dealt with in his decision) I suggested to Mr Kotas that before one delved into the detail, it was important to identify the nature of the background country material that was placed before the Judge in order to determine whether there was a large body of country material that he simply failed to deal with. If that was the case then it would arguably be a complete answer to the case that the Judge had erred in law.

32. In fact, notably Mr Kotas clarified to me that he "put it this way" and continued:

"The Judge has treated the general country situation as an homogenous mass and so in effect glossed over the improvement in the security situation in Aden. That demonstrated that the security situation there simply did not cross the Article 3 threshold".

33. In the course of his submissions, Mr Kotas helpfully acknowledged, notwithstanding the quotation in the grounds, that it could not be said that the Judge had failed to consider the COIS of November 2015 as the Judge had made reference to the report at, for example, paragraphs 66 and 67 of his decision. Nonetheless the COIS at paragraph 2.6.7 had stated inter alia that:

"Aden has become increasingly stable, with lower numbers of violent incidents being reported, since July 2015 when the city was cleared of Houthi rebels by the government backed by Saudi-led coalition troops and the Yemen authorities re-established control."

34. Further I was referred to paragraph 2.7.6 where inter alia the following was stated:

"Relocating to most parts of Yemen remains difficult, but it may be reasonable for persons to relocate to Aden and in the more stable areas in the south of the country."

35. I was also referred to aspects of paragraphs 3.11 and 3.12 as follows:

"Yemen is in a state of armed conflict ? however since July 2015 the situation has improved in parts of southern Yemen including Aden.

3.12 The humanitarian situation in Aden and some other areas of southern and eastern Yemen, whilst severe, did not in general add such a level as to breach Article 3".

36. Mr Kotas continued that it followed that whilst the Judge made reference to the report, he had failed to particularly address those important aspects of it that should have alerted him to the very high threshold that had to be crossed when considering Article 3.

37. Further submitted Mr Kotas, the Judge had failed adequately to deal with the profile of the Appellant, mindful in particular of what appeared to be the Judge's reliance in terms of the claimant's risk on return because of his father's profile as the grounds have identified and exemplified.

38. The Judge had failed to take proper account of the determination of the Tribunal in a decision promulgated on 19 October 2009 in relation to the claimant, when they rejected the claimant's claims of current fear as at that time if now returned to Yemen and I was referred to paragraphs 23 and 24 of that determination that for the sake of completeness I will set out below:

"23. We have carefully considered the Appellant's claims to a current fear if now returned to Yemen. The Respondent notes the report about the trial of sixteen named persons in relation to the events of the 1994 civil war. The Appellant claims his father was an opposition military leader. The Appellant has not however asserted there was no documentary evidence that his father was one of those tried in absentia. The Canadian source quoted by the Respondent states that many, including those involved in military activity, returned after an amnesty granted in 1994/5. We accept that there has been an amnesty and we accept that sixteen named individuals were the only ones tried, in absentia, and convicted and sentenced in relation to the 1994 internal conflict. The Appellant's father's name was not among the sixteen. We note the nature of the Appellant's claim. He had not been militarily or politically active before he left Yemen. H would then have been 16 years old. It is not suggested there is in existence a warrant to arrest him.

24. Considering the evidence in the round, we accept that the circumstances in connection with which the Appellant was recognised as a refugee have now ceased to exist because (a) the Appellant's father was not one of the 16 named as tried and convicted in 1999; (b) he had not been involved with any military - or political activity before he left and (c) because an amnesty was granted to participants in the conflict apart from the sixteen named, so had his father been involved as he claimed he would have been eligible for the amnesty. Consequently we find that the Appellant cannot refuse to avail himself of the protection of Yemen, the country of his nationality. ?"

39. In his decision the First-tier Tribunal Judge remarked that in terms of the claimant's protection claim that was based upon his family history and previous claim and the general humanitarian situation, the Judge noted that there was no real challenge to the factual claim and that the claimant's father's connections were set out in the refusal letter. He continued "the difference between the parties was the interpretation of the background evidence of the Appellant's claims and the risks posed to him". In that regard the Judge noted that there was "no current report from the UNHCR in respect of this case".

40. The Judge then turned his attention to the Secretary of State's refusal letter and as he observed at paragraph 60 the letter "provides an analysis of the background county information".

41. Further at paragraph 61 the Judge noted that the refusal letter acknowledged

".. from the reports quoted, that Yemen faces the biggest crisis in decades with the overthrow of the government by the Houthis. It reports that the President was placed under house arrest and has since escaped and formed a government in exile in Riyadh. The report states there has been some success in the retaking of parts of southern Yemen and that ministers of the Hadi government returned to Aden in August 2015. In September Saudi-led forces were attempting to improve the security situation in Aden".

42. Having acknowledged those aspects of the background material, the Judge continued at paragraph 62 to remark that the refusal letter suggested that "Aden has become increasingly stable with lower numbers of violent incidents being reported. It suggested that law and order are slowly being restored".

43. That indeed was a further acknowledgement of the positive aspects as to the security situation not least in Aden.

44. At paragraph 63 the Judge noted the claimant claimed to have been born and raised in Aden.

45. At paragraph 64 in reference to the general humanitarian situation, the Judge noted that the United Nations had

"declared a level 3 (most severe) emergency response to Yemen in July 2015. It states that throughout the country, people are struggling to access food, fuel and medicine with an estimated 8.6 million people in urgent need of medical care. It is stated that the Yemeni population is about 25 million".

46. At paragraph 65 the Judge observed that the humanitarian situation was described

"as serious, including in Aden in April 2015 the UNHCR called for all countries to suspend forcible return. The report goes on to state that the situation has improved and the Home Office Country Guidance suggests that whilst severe the humanitarian situation does not cross the level to breach Article 3".

47. At paragraph 66 in taking account of the COI Report of November 15, the Judge observed that it "described the Houthi-Hadi divide as the most explosive but that it is not the only conflict". Tensions were also unsettling the recent:

" 'marriage of convenience' between the Houthis and former President Ali Abdollah Saleh. He has taken advantage of popular dissatisfaction and tacitly allied himself with the Houthis against their common enemies. It states that the Southern separatists are internally split and suspicious of Hadi who supports continued unity with the north. This suggests the situation is complex between alliances".

48. The Judge's consideration of the background material did not end there, because over paragraphs 67 and 68 of his decision, the Judge referred to the claimant's bundle of documents and the reports to which the claimant's Counsel had drawn his attention. These included a report dated 22 December 2015 relating to a speech by the Ambassador of the UK Mission to the UN whom, it was observed in summary, had stated inter alia:

"If the Security Council members were an average group of fifteen Yemenis, twelve would need humanitarian assistance and four would need emergency food assistance just to survive. It was stated that Yemenis are the midst of one of the worst humanitarian crises in the world".

49. The Judge further noted that "this report is the most recent apart from two brief reports dated January 2016. I note that there had been reports of killings and attacks in Aden despite this being the temporary main capital". (Emphasis added).

50. The Judge continued that "the reports in the Appellants bundle generally echo those of the Home Office and in fact several of the reports in the Appellant's bundle are the COI's that I have already referred to".

51. At paragraph 68 of his decision, the Judge concluded that the background material before him that he had carefully considered provided "alarming reading and gives an impression of a dire state of affairs. It is very difficult to assess how people, said to be allied to separatist conflicts of the past would be viewed".

52. The Judge continued that the claimant had been absent in the interim twenty years but that

"in the very volatile situation that it is at present, he is likely to be treated with great suspicion. This could put him at extreme risk. I consider that there would be a risk of there being attributed to him a political opinion which could put him at risk of persecution and ill-treatment by the various warring factions".

53. At paragraph 69 the Judge continued that in his judgment:

"given the humanitarian crisis at present and despite the suggestion in the COI that the Article 3 threshold is not crossed, I conclude that threshold is crossed, especially for a person returning without any connections, family or support networks. I also take into account the Appellant has an addiction which also makes him particularly vulnerable at this time."

54. The Judge however acknowledged that given his judgment about Section 72, the claimant was excluded from humanitarian protection despite the provisions of paragraph 339C that a person would otherwise be granted humanitarian protection where there were substantial grounds shown for believing the person concerned on return to his country of origin would face a real risk of suffering serious harm and was unable or owing to such risk unwilling to avail himself of the protection of that country.

55. At paragraph 75, the Judge concluded that due to the risks that he had earlier identified, he allowed the appeal in reliance upon Article 3 from which he was clear that there could be no derogation.

56. Upon my own careful consideration of the background material before the Judge, his treatment of it and the submissions of the parties, I am satisfied that contrary to the assertions in the grounds, the Judge in fact carried out a careful detailed and frank analysis of all the evidence before him, in terms not only of the material upon which the Secretary of State relied in her refusal letter, but which in fact included up-to-date country evidence as well as of course the evidence of the claimant.

57. Indeed over paragraphs 9 to 12 of his determination, he made a point of setting out the background material before him including the COIS of November 2015 and the Tribunal determination of 2009 but it was also apparent over paragraphs 60 to 69 of his decision in particular, that there was an analysis of the claimant's position in the light of that evidence and in the light of his profile.

58. That profile included the claimant's father's history and the claimant's own circumstances which included his identified vulnerability, lengthy absence and of course the current position in Yemen, not least in Aden. However, it was also clear the Judge was well aware of the improvements on the ground in Aden as apparent from not least paragraphs 62 to 65 of the decision to which I have above referred.

59. As Mr Khubber in his submissions rightly pointed out, the Judge had discharged the duty upon him to carry out a fact-sensitive evaluation of the circumstances of the claimant upon his return to Yemen in terms of his profile. That led him at paragraph 69 to conclude in summary that

".. given the humanitarian crisis at present and despite the suggestion in the COI that the Article 3 threshold was not crossed, I conclude the threshold is crossed especially for a person returning without any connections, family or support networks. I also take into account the Appellant has an addiction which also makes him particularly vulnerable at this time".

60. The Judge clearly considered those aspects of the background material that demonstrated improvement in Aden but it was also clear that there was a need to take a fact sensitive approach to it.

61. Indeed, having looked again at the paragraphs of the COI to which Mr Kotas referred me, paragraph 2.5.8 began by pointing out that the humanitarian situation remained "serious throughout the country including Aden and in April 2015 the UNHCR called for all countries to suspend forcible returns of nationals and habitual residence of Yemen".

62. At paragraph 2.6.7 whilst there was an acknowledgement Aden had become increasingly stable, the passage opened by stating that "violent clashes continue with civilians largely bearing the brunt of the conflict, fighting and armed clashes have increasingly moved into central ?????.. in Yemen although the situation remains fluid".

63. As to paragraph 2.7.6 the passage opened by stating that "relocating to most parts of Yemen remains difficult, but it may be reasonable for persons to relocate between Aden and the more stable areas in the south of the country." The passage however continues as follows:

"Decision makers must give careful consideration to the relevance and reasonableness of internal relocation on a case-by-case basis taking full account of the individual circumstances of the particular person including where they originate from in Yemen and where they will be returning to. Decisions makers must refer to the latest available country information when considering internal relocation".

64. It is apparent upon my reading of the decision, that this was the task that the First-tier Tribunal Judge carried out and his analysis chimes with that guidance in concluding that for the cumulative reasons identified, it was not safe for the claimant to return to Aden where he would be at real risk of suffering Article 3 ill-treatment.

65. I would agree with Mr Khubber that this is a question of interpretation and the conclusion that the Judge reached was one that he was perfectly entitled to make.

66. As to the situation as it related to the profile of the claimant's father, that was of course only one aspect of the claimant's case. I do not find that even if the Secretary of State's interpretation on that profile demonstrates a misunderstanding on the part of the First-tier Tribunal Judge that that in itself would not demonstrate that the decision as a whole was infected such as to lead to a material error, as clearly the Judge had reached his decision on a series of other issues and it was the cumulative impact that had to be looked at in the round. It is clear that the Judge's conclusions reached over paragraphs 61 to 69 of his decision did not rely exclusively on the implication to the claimant on the basis of his father's profile.

67. As Mr Khubber submitted, whilst the father's profile was found not to have established a continuing basis for refugee protection in 2009 at the time of the Tribunal's decision, it was nonetheless relevant to consider now in terms of the deteriorating situation in Yemen as a whole in 2016 when this appeal was being considered and the First-tier Tribunal Judge was thus perfectly entitled to consider that the claimant's father's profile might have an impact on the claimant if he was now returning twenty years after he had left but again I repeat that that was only one aspect of the various considerations that the Judge made in terms of Article 3 not only over paragraphs 61 to 69 but also over paragraphs 70 to 75 of his decision.

68. Whilst it might be the case that another Judge considering the same evidence would come to a different conclusion, I find that the Secretary of State's challenge is in substance no more than a disagreement with that conclusion.

69. I find the grounds thus fail to disclose an error of law upon my careful reading of the Judge's decision.

70. The grounds assert in summary that the Judge's decision discloses inadequate reasoning and that the First-tier Tribunal Judge failed to make findings of fact on every issue arising and generally express disagreement with the findings made.

71. I am satisfied that it is entirely clear from the Judge's decision read as a whole, why the appeal was allowed under Article 3 of the ECHR. The reasoning of the First-tier Tribunal Judge in that regard cannot be said to be irrational nor his conclusions perverse. The Judge was required to explain why he reached his conclusions but was not required to assemble and set out in the determination everything that was capable of supporting a contrary view. In that regard I would again refer to Mukarkar (above) at paragraph 40.

72. It is apparent to me that in terms of Article 3 of the ECHR the First-tier Tribunal Judge reached findings that were supported by and open to him on the evidence and thus sustainable in law.

73. In Shizad (Sufficiency of reasons: set aside) [2013] UKUT 00085 (IAC) it was made clear that the conclusions in the central issues of appeals need not be extensive if the decision as a whole made sense. I find that within the Judge's determination, comprehensive reasons, supported by the evidence were provided by him for his conclusions. This is not a case where I find such reasoning could in any sense by described as inadequate. It is apparent the Judge's decision in terms of Article 3 reveal no misdirection. Further the Judge's fact-finding process cannot be criticised. It is apparent that he properly took account of the background material before him that he set against the backdrop of the facts as found.

74. I find that the Judge properly identified and recorded the matters that he considered to be critical to his decision on the material issues raised before him. The findings that he made were clearly open to him on the evidence and thus sustainable in law.

Notice of Decision

The making of the previous decision involved the making of no error on a point of law and I order that it shall stand.

Anonymity

The First-tier Tribunal made an order pursuant to Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I continue that order (pursuant to Rule 14 and the Tribunal Procedure (Upper Tribunal) Rules 2008).

Signed Date 18 July 2016

Upper Tribunal Judge Goldstein