Ainte (Material Deprivation – Art 3 – AM (Zimbabwe))
| Jurisdiction | UK Non-devolved |
| Judge | Bruce,O'Callaghan |
| Judgment Date | 10 August 2021 |
| Neutral Citation | [2021] UKUT 203 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 203 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Bruce and O'Callaghan UTJJ
Mr J Anderson instructed by the Government Legal Department, for the Secretary of State;
Mr R Toal and Mr T Lay instructed by Brighton Housing Trust Immigration Legal Services, for the Claimant.
AM and AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091
AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17; [2021] AC 633; [2020] 2 WLR 1152; [2020] 3 All ER 1003; [2020] Imm AR 1167; [2020] INLR 401
AMM and Others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC)
Airey v Ireland 1979 ECHR 6289/73, ECtHR; (1979–80) 2 EHRR 305
Bensaid v United Kingdom 2001 ECHR 44599/98; (2001) 33 EHRR 10; [2001] INLR 325
Bilgin v Turkey 2000 ECHR 23819/24; (2003) 36 EHRR 50
Bouyid v Belgium 2015 ECHR 23380/09; (2016) 62 EHRR 32
Brown v Stott [2003] 1 AC 681; [2001] 2 WLR 817; [2001] 2 All ER 97
Budina v Russia 2009 ECHR 45603/05 (admissibility decision)
Chahal v United Kingdom 1996 ECHR 22414/93, ECtHR; (1996) 23 EHRR 413
Cruz Varas and Others v Sweden 1991 ECHR 15576/89, ECtHR; (1992) 14 EHRR 1
D v United Kingdom 1997 ECHR 30240/96, ECtHR; (1997) 24 EHRR 423
Denmark v Greece 1974 ECHR 3321/67, EComHR (“The Greek Case”)
Dudgeon v United Kingdom 1980 ECHR 7525/76, EComHR; (1981) 3 EHRR 40
Dulas v Turkey 2001 ECHR 25801/94
G v G [2021] UKSC 9; [2021] 2 WLR 705; [2021] Imm AR page
GS (India); EO (Ghana); GM (India); PL (Jamaica); BA (Ghana) and KK (DRC) v Secretary of State for the Home Department [2015] EWCA Civ 40; [2015] 1 WLR 3312; [2015] Imm AR 608; [2015] INLR 446
Golder v United Kingdom 1975 ECHR 4451/70, ECtHR; (1979–80) 1 EHRR 524
HH and Others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022
KAM (Nuba – return) Sudan CG [2020] UKUT 269 (IAC)
Larioshina v Russia 2002 ECHR 56869/00 (admissibility decision)
MI (Palestine) v Secretary of State for the Home Department [2018] EWCA Civ 1782; [2019] Imm AR 75
MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC)
MSS v Belgium and Greece 2011 ECHR 30696/09; (2011) 53 EHRR 2; [2011] INLR 533
Marckx v Belgium 1979 ECHR 6833/74, ECtHR; (1979) 2 EHRR 330
Moldovan and Others v Romania (No 2) 2005 ECHR 41138/98 & 64320/02; (2007) 44 EHRR 16
Muslim v Turkey 2005 ECHR 53566/99; (2006) 42 EHRR 16
N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296; [2005] 2 WLR 1124; [2005] 4 All ER 1017; [2005] Imm AR 353; [2005] INLR 388
N v United Kingdom 2008 ECHR 26565/05; (2008) 47 EHRR 39; [2008] Imm AR 657; [2008] INLR 335
NADC v Switzerland 1998 ECHR 37384/97 (admissibility decision)
NM and Others (Lone women – Ashraf) Somalia CG [2005] UKIAT 00076
Netherlands v Greece 1974 ECHR 3324/67, EComHR (“The Greek Case”)
Norway v Greece 1974 ECHR 3322/67, EComHR (“The Greek Case”)
Panchenko v Latvia 1999 ECHR 40772/98 (admissibility decision)
Paposhvili v Belgium 2016 ECHR 41738/10; [2017] Imm AR 867; [2017] INLR 497
Pretty v United Kingdom 2002 ECHR 2346/02; (2002) 35 EHRR 1
R v Secretary of State for the State Department ex parte Adam, Limbuela and Tesema [2005] UKHL 66; [2006] 1 AC 396; [2005] 3 WLR 1014; [2007] 1 All ER 951
SB (refugee revocation: IDP camps) Somalia [2019] UKUT 358 (IAC)
SCC v Sweden 2000 ECHR 46553/99 (admissibility decision)
SHH v United Kingdom 2013 ECHR 60367/10; (2013) 57 EHRR 18
Secretary of State for the Home Department v AH (Sudan) and Others [2007] UKHL 49; [2008] 1 AC 678; [2007] 3 WLR 832; [2008] 4 All ER 190; [2008] Imm AR 289; [2008] INLR 100
Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994; [2019] 1 WLR 241; [2018] Imm AR 1273; [2018] INLR 809
Secretary of State for the Home Department v MS (Somalia) [2019] EWCA Civ 1345; [2020] QB 364; [2019] 3 WLR 705; [2020] Imm AR 131; [2020] INLR 114
Secretary of State for the Home Department v Said [2016] EWCA Civ 442; [2016] Imm AR 1084
Selçuk and Asker v Turkey (1998) 26 EHRR 477
Sheekh v Netherlands 2006 ECHR 1948/04; (2007) 45 EHRR 50; [2007] INLR 547
Soering v United Kingdom 1989 ECHR 14038/88, ECtHR; (1989) 11 EHRR 439
Sufi and Elmi v United Kingdom 2011 ECHR 8319/07 & 11449/07; (2012) 54 EHRR 9
Sweden v Greece 1974 ECHR 3323/67, EComHR (“The Greek Case”)
Tanko v Finland 1994 ECHR 23634/94 (admissibility decision)
Tanko v United Kingdom 1978 ECHR 5856/72, ECtHR; (1979–80) 2 EHRR 1
Vilvarajah and Others v United Kingdom 1991 ECHR 13163/87, ECtHR; (1992) 14 EHRR 248
Vinter and Others v United Kingdom 2013 ECHR 66069/09, 130/10 & 3896/10; (2016) 63 EHRR 1
Wemhoff v Germany 1968 ECHR 2122/64, ECtHR; (1979–80) 1 EHRR 55
Directive 2004/83/EC (“the Qualification Directive”), Article 15(b) & (c)
European Convention on Action Against Trafficking in Human Beings, Article 4
Kuropean Convention on Human Rights, Articles 3 & 8
European Union Withdrawal Act 2018, secton 2–4
Nationality, Immigration and Asylum Act 2002, sections 72 & 117C(6)
UK Border Act 2007, section 32 & 33
European Union law — Qualification Directive — Article 15 of Directive 2004/83/EC — direct effect continued after UK withdrawal from EU — human rights — Article 3 of the ECHR — inhuman and degrading treatment — material deprivation — AM (Zimbabwe)[2020] UKSC 17 applied — Article 8 of the ECHR — private life — proportionality — “very compelling circumstances”
The Claimant, a citizen of Somalia, was born in October 1991 in the Lower Shabelle region. When he was very young his family moved to Mogadishu where he attended school. One day in 2005, fighting broke out in the city and he returned home to find his parents had fled. He had not seen any member of his immediate family since then. Thereafter, he lived with two neighbour boys aged 16, and their elder brother who supported them all. In 2007 he resolved to leave Somalia. His paternal grandmother paid for his journey.
He arrived in the United Kingdom in 2008, aged 16, and sought protection as a refugee. His asylum claim was refused in 2008 and his appeal against that decision was dismissed. For the first few years, the Claimant lived either in the care of the local authority or with his cousin. She supported him financially until she lost her job in the pandemic. The Claimant's paternal grandmother died in 2014. His mother and siblings were living in Kenya. His father's whereabouts were unknown.
In 2011 he became homeless and started abusing alcohol and drugs. Thereafter he sold drugs to support his habit. From November 2011, he received several convictions for possessing cannabis. In April 2014, he was convicted of possession of a Class A drug with intent to supply and was sentenced to four years in prison. He was therefore subject to the automatic deportation procedure set out in section 32 of the UK Borders Act 2007. On release from prison he was assessed as being at a low risk of reoffending and had been clean of drugs since the beginning of 2015. He volunteered for a Somali community group, had an active social life and regularly played football. Expert medical reports indicated that he had experienced symptoms associated with Post-Traumatic Stress Disorder and depression but had managed the symptoms himself by socialising with friends and playing football. The reports opined that his symptoms of depression were likely to worsen should he be deported to Somalia.
The Claimant challenged his deportation before the First-tier Tribunal (“FtT”) on the ground that he was entitled to protection under the Refugee Convention. The FtT rejected that claim and refused permission to appeal against that decision. The Claimant also submitted that his removal to Mogadishu would result in him facing a real risk of living in conditions of such extreme material deprivation, and so lacking in security, that they would constitute inhuman and degrading treatment under Article 3 of the ECHR and/or Article 15(b) of Directive 2004/83/EC (“the Qualification Directive”) and/or amount to “very compelling circumstances” establishing that deportation would be a disproportionate interference with his private life under Article 8 of the ECHR. The FtT found that argument to be made out and consequently allowed the appeal on both human rights and humanitarian protection grounds. The Secretary of State for the Home Department appealed to the Upper Tribunal (“UT”). In October 2020, the UT found that the FtT had erred in its approach and decided to re-make the decision.
Held, dismissing the appeal:
(1) The current country guidance in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) must be read in line with the decision in Secretary of State for the Home Department v Said[2016] EWCA Civ 442. The decision in Said was not to be read to exclude the possibility that Article 3 of the ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered included the location where the harm arose and whether it resulted from deliberate action or omission. There must be an analysis of the impact on the individual concerned and living conditions must be bad enough to reach the minimum level of severity required to engage Article 3. There was no jurisprudential distinction between health cases and those concerned with material deprivation. The courts had treated them in the same way, uniformly applying the test set out in N v United Kingdom2008 ECHR 26565/05 wherever the feared harm arose from naturally occurring circumstances. In cases where the material deprivation was not intentionally caused, the threshold was the modified N test set out in AM (Zimbabwe) v Secretary of State for the Home Department[2020] UKSC 17. The question would be whether conditions were such that there was a real risk that the individual concerned would be exposed to intense suffering...
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