Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00121/2015

THE IMMIGRATION ACTS

Heard at : UT(IAC) Birmingham
Decision & Reasons Promulgated
On : 6 January 2017
On : 11 January 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

YUSUF ADAN SHARIF AHMED
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Rutherford, instructed by Dicksons Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent's decision to cease his refugee status and to refuse his protection and human rights claim further to a decision to deport him pursuant to section 32(5) of the UK Borders Act 2007.

2. The appellant is a citizen of Somalia, born on 15 December 1987. He arrived in the United Kingdom on 30 June 2004 with his mother and four siblings to join his father, a recognised refugee, and was granted refugee status and indefinite leave to remain in line with his father.

3. On 21 February 2012 the appellant was convicted of robbery and false imprisonment and sentenced, on 17 April 2012, to seven years and six months' imprisonment. In September 2012 he was notified of his liability to automatic deportation in accordance with section 32(5) of the 2007 Act and on 26 January 2015 he was served with a decision to make a deportation order under section 32(5). The respondent also, in a letter of the same date, invited the appellant to seek to rebut the presumption under section 72 of the Nationality, Immigration Act 2002 that he had been convicted of a particularly serious crime and constituted a danger to the community. On 27 April 2015 the appellant was notified of the respondent's intention to cease his refugee status under Article 1C(5) of the Refugee Convention and paragraph 339A of the immigration rules on the basis that the circumstances in connection with which he had been recognised as a refugee had ceased to exist. On 14 May 2015 the respondent notified the UNHCR of the same and invited a response.

4. On 4 December 2015 the appellant was served with a decision to cease his refugee status and to refuse his protection and human rights claim and maintain the decision to deport him, together with a deportation order made pursuant to section 32(5) of the 2007 Act.

5. The respondent, in making that decision, considered first of all the issue of cessation and concluded that the situation regarding minority clans, which was the basis upon which his family had been granted refugee status, had since changed. The respondent relied on the country guidance in MOJ & Ors (Return to Mogadishu) (Rev 1) (CG) [2014] UKUT 442 in regard to the current improved situation in Mogadishu and considered that the appellant no longer required international protection on the basis of his Ashraf clan membership. The respondent considered that the appellant would be able to reintegrate into Somalia and relocate to Mogadishu and that he was no longer at risk of persecution or ill-treatment amounting to a breach of Article 3 of the ECHR. The respondent therefore decided to revoke the appellant's refugee status. The respondent, further, concluded that the appellant had failed to rebut the presumption under section 72(2) of the 2002 Act and accordingly certified that the presumption applied to him, with the effect that he was excluded from protection under the Refugee Convention. He was also excluded from humanitarian protection. The respondent went on to consider Article 8 of the ECHR and concluded that the appellant could not meet the requirements in paragraph 399(a) and (b) or 399A and that there were no very compelling circumstances outweighing the public interest in his deportation. The respondent found that the appellant could not meet any of the exceptions to automatic deportation in section 33 of the 2007 Act.

6. The appellant's appeal against that decision was heard in the First-tier Tribunal on 14 April 2016 by First-tier Tribunal Judge Juss. Judge Juss found that the appellant could not succeed under the Refugee Convention or on human rights grounds and dismissed the appeal.

7. The appellant sought permission to appeal to the Upper Tribunal on the grounds that the judge had failed to undertake any assessment of his circumstances in line with the country guidance in MOJ. Permission to appeal was granted on 13 July 2016.

8. The appeal came before me on 6 January 2017. I heard submissions on the error of law and advised the parties that in my view the judge had made material errors of law such that the decision had to be set aside.

9. There was no dispute by the parties that the judge's decision contained various errors of law: he had failed to give any consideration to the certification under section 72 of the 2002 Act; he had failed to consider the question of cessation; and there was no detailed assessment of the risk factors in MOJ. It was Mr Mills' submission, however, that none of those errors were material since the outcome of the appeal was inevitable, given the findings in MOJ and considering that a detailed assessment of the risk factors could have elicited no other response.

10. Whilst it may well be that a full and proper consideration of the various factors at (ix) to (xi) of the headnote to MOJ would not result in any positive outcome for the appellant, it seems to me that, in the interests of justice and fairness, the appellant should nevertheless be given the benefit of a full and proper consideration of his case. Judge Juss failed to give anything more than a cursory consideration to the guidance in MOJ and his very limited findings at [16] did not include any consideration of the appellant's particular circumstances in the context of the factors at (ix) of the head-note and were unsupported by any proper analysis and reasoning.

11. For those reasons I consider that Judge Juss's decision has to be set aside and the decision in the appeal re-made, so that a full and proper analysis of the appellant's circumstance can be considered with proper findings made in line with the guidance in MOJ. In view of the many errors in the judge's approach to the appellant's case as a whole, I do not consider that any of his findings can properly be preserved. Accordingly the appropriate course would be for the case to be remitted to the First-tier Tribunal to be heard afresh.

DECISION

12. The appellant's appeal is allowed.

13. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal, pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2, to be dealt with afresh, before any judge aside from Judge Juss.

Signed
Upper Tribunal Judge Kebede