Abdirashid Abdirahman Tirabi v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,Doyle,Doyle DUTJ,Mr CMG Ockelton |
| Judgment Date | 09 May 2018 |
| Neutral Citation | [2018] UKUT 199 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 May 2018 |
[2018] UKUT 00199 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, VICE PRESIDENT
DEPUTY UPPER TRIBUNAL JUDGE Doyle
For the Appellant: Mr B Melville, instructed by Drummond Miller.
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer.
Tirabi (Deportation: “lawfully resident”: s.5(1))
For the purposes of applying to para 399A of the Rules and s. 117C of the 2002 Act a definition of “lawfully resident” analogous to that in para 276A (as mandated by SC (Jamaica)), the invalidation provisions of s. 5(1) of the 1971 Act are to be ignored.
The appellant, a national of Somalia, appealed to the First-tier Tribunal against a deportation order made against him under the provisions of the UK Borders Act 2007 on 16 March 2016. Judge J C Grant-Hutchinson dismissed his appeal. The appellant now appeals, with permission, to this Tribunal.
The appellant appears to have arrived in the United Kingdom on or before 24 October 2001, when he was nine years old. He was with his mother. Her application for asylum was refused and her appeal was dismissed. She was in due course granted indefinite leave to remain, and the appellant was granted leave in line with her. When he reached the age of eighteen on 22 July 2010 he accordingly already had leave.
On 30 September 2015 the appellant appeared before Glasgow Sherriff Court and was convicted of being concerned with the supply of a controlled drug. He was sentenced to 12 months imprisonment. It was that event which prompted the making of the deportation order.
The appeal was on a number of grounds. The First-tier Tribunal Judge rejected it for the following reasons. In reference to his claim based on article 3 of the European Convention on Human Rights, the judge found that he would not be at risk of ill treatment, despite his belief that Somalia is a war zone, his claim that he had no family there and that he did not speak the Somali language, his worry that he would be targeted for kidnapping or murder, and his concern that he would not survive either if his family were to support him from the United Kingdom. Noting that in 2003, in her asylum claim, the appellant's mother said that she came from Mogadishu, the judge considered the Country Guidance case MOJ and others (Return to Mogadishu) [2014] UKUT 00442 (IAC). She analysed the evidence before her, and did not accept that the appellant was telling the truth on a number of issues, including his command of the Somali language, and the whereabouts of various relatives. She did not accept the appellant's claim that he had no useful skills. She decided, based on MOJ, that he would not be at risk on return.
She then turned to the Human Rights argument, based on the length of time he has been in this country. She noted, correctly, that paragraph 399A of the Statement of Changes in Immigration Rules, HC 395 (as amended), and Section 117B-C of the Nationality, Immigration and Asylum Act 2002 apply to this case. To a large extent, those provisions overlap. She considered the exceptions to deportation set out in paragraph 399A and Section 117C(4). She found as follows. (a) The appellant had not been lawfully resident in the United Kingdom for most of his life, because he had been granted leave only in 2010. (b) The appellant had not socially and culturally integrated into the United Kingdom, as demonstrated by his offence. (c) There would not be very significant obstacles to the appellant's integration into Somalia, based on the findings of fact that she had made in relation to the claim under article 3.
She accordingly dismissed the appeal. The grounds of appeal challenge each of the four findings we have set out above. We heard submissions on them from Mr Melville and from Mrs O'Brien.
Mr Melville made no oral submissions specifically directed to the judge's finding in relation to article 3. It seems to us that that finding is, in essence, unassailable. The judge considered the case that the appellant was trying to make. She concluded that, in the factors he raised which might have shown that he would be at risk within the criteria set out in MOJ, he was not, or was not wholly, credible. In those circumstances she had no obligation to believe him on other similar matters. It is perfectly clear that she was entitled to reach the conclusion she did as to the appellant's credibility and as to his failure to establish the fact upon which he relied for his article 3 claim. So far as article 3 is concerned, therefore, we have no hesitation in saying that the judge's conclusion was correct.
We turn therefore to the three factors set out in paragraph 399A of the Immigration Rules and, in the same terms, in Section 117C(4) of the 2002 Act. The first question is whether the appellant has been “lawfully resident in the UK for most of his life”. This phrase was the subject of interpretation by the Court of Appeal in SC (Jamaica) [2017] EWCA Civ 2112, in which the leading judgment, with which the other members of the Court agreed, was given by the Senior President of Tribunals. At [53], the Senior President concluded that “most of his life” means “more than half”. At [54]–[57], the Senior President considered the definition of “lawful residence” for these purposes. There is no definition made specifically applicable to either paragraph 399A or Section 117C; but there is an unrelated definition of lawful residence in paragraph 276A(b) of the Rules, in relation to an application for indefinite leave to remain:
““Lawful Residence” means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act where leave to enter of remain is subsequently granted.”
The reference to temporary admission has been the subject of amendment following the coming into force of the Immigration Act 2016, but that has no impact on the present discussion.
Faced with the alternative arguments that the requirement in relation to article 8 should be interpreted by analogy with that in paragraph 276A on the one hand, and that (as submitted by the Secretary of State) lawful residence...
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