Secretary of State for the Home Department v Abdulkadir Ahmed Said
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Lady Justice Sharp,Lord Justice Christopher Clarke |
| Judgment Date | 06 May 2016 |
| Neutral Citation | [2016] EWCA Civ 442 |
| Docket Number | Case No: C5/2015/1554 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 May 2016 |
[2016] EWCA Civ 442
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge King TD
DA003562013
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lord Justice Christopher Clarke
The Rt Hon Lady Justice Sharp
and
The Rt Hon Lord Justice Burnett
Case No: C5/2015/1554
Julie Anderson (instructed by Government Legal Department) for the Appellant
James Collins (instructed by Messrs Duncan Lewis) for the Respondent
Hearing dates: 19 April 2016
The issue for determination in this appeal is whether the Upper Tribunal (Immigration and Asylum Chamber) ("UTIAC") was right to conclude that the deportation of the respondent, Mr Said ("AS"), to Somalia would violate his rights guaranteed by article 3 of the European Convention on Human Rights ("The Convention").
AS is a national of Somalia, now aged 32, who has lived in the United Kingdom since about 1995. His mother and siblings also live in this country, the last sibling having arrived in 2003, as did his father who is now dead. He was granted indefinite leave to remain in July 2003. On 22 June 2009 AS was convicted at Blackfriars Crown Court of two counts of rape. He was sentenced to five years' imprisonment and was subject to the automatic deportation provisions of the UK Borders Act 2007. Deportation proceedings were initiated to coincide with the end of the custodial element of his sentence. In due course, his appeal against the decision to deport came before the First-tier Tribunal (First-tier Tribunal Judge Blackford and Ms V Street (non-legal member)) ("the F-tT") who heard evidence on 28 June 2013 and 18 October 2013. AS resisted deportation relying upon articles 3 and 8 of the ECHR. His appeal was dismissed by a determination promulgated on 9 December 2013.
The Appeal to UTIAC
AS appealed with permission to UTIAC. The appeal came before Upper Tribunal Judge King TD who on 1 July 2014 promulgated his first determination which concluded that the F-tT had made an error of law in connection with its conclusion on Article 3, but not on Article 8. He reserved the redetermination of the article 3 issue to himself in UTIAC. Save as regards "vulnerability" of AS, as to which he envisaged that further medical evidence might be deployed, he preserved the findings of the F-tT. New country guidance relating to Somalia was awaited at that time. It was expected that the parties would develop their arguments at the redetermination hearing by reference to that new guidance. The guidance was promulgated on 10 September 2014: MOJ v Secretary of State for the Home Department [2014] UKUT 00442 (IAC) ("Somalia CG").
The judge's conclusion that AS's deportation would violate article 3 of the Convention is founded upon the proposition that he would be at risk of finding himself destitute and thus likely to end up in what is called an IDP camp, where the conditions would be very poor. "IDP" is an acronym for "internally displaced person" and an IDP camp is a makeshift refugee camp where many such people end up, at least temporarily.
Having reviewed the factual evidence, the judge accepted that AS can speak Somali. He asserted that his Somali was poor. The F-tT disbelieved him because Somali was his main language until he was 15, and he lived with his mother who did not speak English. It found that he had lied about this aspect of the evidence to try to bolster his appeal (under article 8). It also found that his immediate family members had deliberately exaggerated aspects of their evidence for the same purpose. He had been educated in England since he was 10 (i.e. when he arrived), and thus also speaks English. He had worked on and on and off in a number of different capacities and was physically healthy. AS had acquired qualifications in business and management before he went into prison, and studied maths and English whilst in prison, having done badly at school. Members if his family have a taxi business. The F-tT had found that he was capable of working; nowhere in the determination of UTIAC is there a finding to the contrary and it is not disputed before us that he has such a capacity. There is no reason why his family would not send him money were he to be returned to Somalia and he was in need of it. There are no close relatives in Somalia (he has lost contact with an Aunt) but he is from a majority clan. "It would be surprising indeed if the [respondent] were unable to access any substantial assistance particularly either from clan members [or] from a developing infrastructure of support." The judge took account of an "economic boom" in Mogadishu which was more fully described in the Somalia CG. Having set out all these features of the case the judge continued:
"The real issue in this case, it seems to me, is the factor of [AS's] mental health."
Before the F-tT AS's mental health had been raised as a factor, but there was little evidence relating to it. He had given evidence which touched on a diagnosis of PTSD, that he had received treatment for it in prison and that he was on medication for a sleeping disorder. At paragraph 168 of its determination the F-tT said:
"As regards the Appellant's illness we note the reference to post-traumatic stress disorder. We note the terms of the letter from Roxanne Timmies, the forensic mental health practitioner and her conclusion that although the Appellant continues to report symptoms of post-traumatic stress disorder and depression, it is difficult to ascertain whether some of this could be in the context of his ongoing immigration issues. This aspect of the Appellant's case was not pressed at the hearing and we do not regard it as having a substantial impact on the issues before us."
The judge had additional written medical evidence before him. A report prepared in May 2011 in connection with AS's release from prison in June that year noted he was on anti-depressants, with a diagnosis of PTSD and depression. There was a psychiatric report dated 3 October 2014 which confirmed that AS developed symptoms of PTSD and depression whilst in prison for which he was prescribed anti-depressants. By some time in 2013, he was in regular contact with community psychiatric services. He continued to suffer from depression although he had responded to medication. Another report from December 2013 noted that AS denied suicidal ideation. There was an up to date psychological report prepared for the UTIAC appeal dated 29 October 2014. PTSD was again confirmed, together with anxiety and a major depressive disorder. That is a diagnostic term which requires the presence of a number of symptoms which collectively "cause clinically significant distress or impairment in social, occupational or other important areas of functioning" (see DSM –5, Criteria for Major Depressive Disorder). AS is reported to have "denied having active plans to harm himself due to his family but did not know how he would cope were he deported to Somalia and would be likely to commit suicide without the support of his family". AS reported that his "emotional health" problems made it difficult for him to cope. He said he rarely left home, felt isolated and avoided social activities. The report recommended continued treatment (AS was on Setraline, a common anti-depressant).
The judge noted that AS relied upon his extended family in the United Kingdom for support and is being supported by professionals. He continued,
"67. … If he were put in a strange environment without such support would potentially make his condition worse rather than better. The relevance of his mental health being his general ability to adjust to change and to a new environment and more particularly his ability to manage his own affairs and accommodation, hold down a job and generally cope. Suffering from severe depression as is the evidence would be an important factor in that consideration as to whether or not the appellant could function as an economic entity if returned…
69 …There are few health centres in the county. An issue arises whether a returnee with mental health problems would be able to access appropriate treatment. …
71. Essentially the real issue said to distinguish the case of the appellant is whether or not by reason of his mental difficulties, he falls within the vulnerable category of individual that would in reality have little prospect of securing access to a livelihood on return. He would find it difficult to make his way in the society in the absence of family or social support."
The judge concluded from reading "the reports as a whole that there is little indication that his symptoms have been exaggerated to the medical practitioners who have dealt with him". He recorded at para 77 that the psychiatrist who prepared the report for the UTIAC appeal
"… perhaps ventures somewhat inexpertly to areas of credibility and country conditions and is of the opinion that because of his mental health difficulties the appellant would not be unable to cope with the stress of living in a tense and unstable environment filled with constant reminders of his past traumas."
The "not" is clearly a typographical error. The statements outside the psychiatrist's expertise include those which suggest a tense and unstable environment in Mogadishu. The current situation in Mogadishu should be taken from the Somalia CG. She also suggested that AS would be unable to receive the treatment he needed in Somalia. She prefaced that observation with the statement "although I am not an expert in mental services in...
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