Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00164/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 March 2019
On 19 March 2019

Before

THE HONOURABLE MRS JUSTICE LANG DBE
UPPER TRIBUNAL JUDGE McWILLIAM

Between

YD
(anonymity direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Miss E Fitzsimons, Counsel, instructed by Duncan Lewis & Co Solicitors (Harrow Office)
For the Respondent: Mr T Wilding, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Somalia. His date of birth is 12 January 1983.

2. The Appellant's immigration history is lengthy. We need only summarise it for the purposes of this decision. He entered the UK in 1994. On 19 November 2003 he was granted asylum, his appeal having been allowed on asylum grounds by the First-tier Tribunal (the FTT). In 2013 the Appellant was convicted of robbery and sentenced to four years imprisonment. As a consequence of his criminality the Secretary of State made a deportation order on 17 November 2016. On 22 November 2016 the Secretary of State made a decision to cease the Appellant's refugee status, exclude him from protection (pursuant to Section 72 of the 2002 Act), and to refuse his human rights claim under Articles 8 and 3. The Appellant appealed. His appeal was dismissed by FTT Judge P S Aujla following a hearing on 11 December 2018 in a decision that was promulgated on 19 December 2018.The Appellant has been granted permission to appeal on all grounds.

3. The Appellant's criminal history, very much distilled, is that between 1999 and March 2009 he accumulated ten convictions for sixteen offences including robbery and supply of class A drugs. On 23 November 2009 he was convicted of robbery and sentenced to fourteen months imprisonment. On 19 December 2013 he was convicted of robbery and sentenced to four years in custody. On 30 September 2015 he was convicted of two counts concerning having been found unlawfully with a mobile phone whilst in detention. We understand that there are two further offences which have been committed by the Appellant since he was released from custody, involving relatively minor drug offences.

The decision of the FTT

4. The judge found that the Appellant was unable to rebut the presumption that he was a danger to the community and he said that in the circumstances "I therefore uphold the Respondent's decision on cessation of his refugee status and do not consider any fresh claim to asylum in light of that" (see [33]). The judge went on to dismiss the appeal on Article 3 and Article 8 grounds.

The error of law

5. There are very lengthy grounds of appeal, which, confusingly, have been redrafted three times using different numbering. The third version is contained in the Appellant's skeleton argument prepared for the hearing before us and this was the version that we and the parties worked from at the hearing. Mr Wilding indicated that it was conceded by the Secretary of State that ground 4 and ground 7 were made out and this amounts to a material error. It was accepted that at paragraphs 14 and 33 of the decision the judge conflated cessation with exclusion and the test applied for cessation was not in accordance with the judgment in MA (Somalia) [2018] EWCA Civ 994. He accepted that the approach by the judge to the issue of cessation was erroneous. If the Appellant is indeed a refugee, this informs the rest of the case and therefore the error is material. Cessation is a separate question from whether the Appellant is excluded because of his criminality. Mr Wilding said that there was a structural error in the decision of the judge. He conceded that the judge materially erred when assessing Article 8 because the assessment was inadequate (see [42]).

6. Mr Wilding further conceded that in the light of the material errors identified none of the findings of the FTT are sustainable. In these circumstances, both parties agreed that the decision should be set aside in its entirety. Mr Wilding indicated that, in his view, the Appellant had not had a proper determination of his appeal and he and Miss Fitzsimons agreed that the matter should be remitted to the FTT for a fresh hearing.

7. We set aside the decision of the FTT to dismiss the Appellant's appeal and remit the matter to the FTT for a fresh hearing on all matters. We do not preserve any of the judge's findings.

8. We strongly suggest that the FTT consider making directions that include the Appellant confirming and clarifying the grounds of appeal relied upon in the light of the statutory regime with reference to Sections 82, 84 and 86 of the 2002 Act. We observe that the only allowable ground under s84(3) is by reference to the Refugee Convention. We suggest that the FTT direct the parties to endeavour to agree the correct structural approach that should be adopted by the FTT with reference to relevant case law including MA and Essa (revocation of protection status appeals) [2018] UKUT 244.

Signed Joanna McWilliam Date 14 March 2019

Upper Tribunal Judge McWilliam