The Secretary of State for the Home Department v AMA (Anonymity Direction Made)

JurisdictionUK Non-devolved
JudgePlimmer
Judgment Date23 October 2018
Neutral Citation[2019] UKUT 11 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date23 October 2018
Between
The Secretary of State for the Home Department
Appellant
and
AMA (Anonymity Direction Made)
Respondent

[2019] UKUT 11 (IAC)

Before

UPPER TRIBUNAL JUDGE Plimmer

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

AMA (Article 1C(5) — proviso — internal relocation) Somalia

  • (1) The compelling reasons proviso in article 1C(5) of the 1951 Refugee Convention, as amended, applies in the UK only to refugees under article 1A(1) of the Convention.

  • (2) Changes in a refugee's country of origin affecting only part of the country may, in principle, lead to cessation of refugee status, albeit it is difficult to see how in practice protection could be said to be sufficiently fundamental and durable in such circumstances.

  • (3) The SSHD's guidance regarding the role of past persecution can not in itself form a lawful basis for finding that removal would lead to a breach of the Refugee Convention, given the limited appeal rights at section 82 of the Nationality, Immigration and Asylum Act 2002, as amended and SF and others (Guidance – post-2014 Act) Albania [2017] UKUT 120 (IAC) 10 when read in its proper context.

Representation:

For the appellant: Mr Tan, Senior Home Office Presenting Officer

For the respondent: Mr Hussain, instructed by Broudie, Jackson & Cantor

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant .

Introduction
1

The appellant (‘the SSHD’) has appealed against a decision of First-tier Tribunal (‘FTT’) Judge Ennals dated 20 November 2017, in which he allowed AMA's appeal against a decision dated 13 June 2017 to make a deportation order.

Background
2

AMA is a citizen of Somalia. He entered the UK in 2006, when he was 14, with his father and siblings, having been granted a settlement visa to join his mother (‘M’), who had been granted asylum in the UK on 17 May 2005. AMA was recognised as a refugee when he entered the UK, as evident from the SSHD's more recent decision to cease his refugee status. In his decision dated 13 June 2017, the SSHD expressly acknowledged that AMA derived his refugee status from his mother.

3

M's 2005 asylum statement provided the following information: she was born in Qoryoley, Somalia and this was her last permanent address in Somalia before she left in February 2005; she and her family members are from the Ashraf minority clan; M, her immediate family members and her extended family members were subject to sustained persecution by the Hawiye majority clan during the civil war from 1996; this led to the killings of some family members and the capture of the remaining family members who were used as forced labour and ill-treated at a camp in Qoryoley; female relatives were raped including M's two sisters and many relatives were killed either trying to escape or in attempting to defend themselves including M's two brothers, M's mother, M's nephew and M's uncle; M's husband and the older children escaped from the camp in 2004 during a period of Hawiye in-fighting; M escaped from the camp in March 2005 with the help of her uncle in Saudi Arabia who arranged for an agent to use bribery to facilitate this; M was able to leave the camp but without the younger children and arrived in the UK on 22 March 2015, after travelling via Ethiopia.

4

M was interviewed regarding her asylum claim on 28 April 2005 and recognised as a refugee in a ‘grant of asylum’ letter dated 17 May 2005. Following this, M's husband and children, including AMA, were granted visas to join M on 3 March 2006, and arrived on 10 April 2006.

5

Between 2009 and 2015, AMA was convicted on five occasions but was not sentenced to a period of imprisonment until 7 March 2012, when he was convicted of production of a controlled drug of Class B and commission of an offence during a suspended sentence order and sentenced to nine months imprisonment.

6

On 1 April 2016 AMA was notified of a decision to deport him under section 5(1) of the Immigration Act 1971. There then followed a period in which representations were sought regarding the cessation of AMA's refugee status. On 18 January 2017 the UNHCR submitted detailed representations on the proposed cessation of AMA's refugee status. The UNHCR submitted that there were insufficient fundamental changes in Somalia to warrant the application of article 1C(5) of the 1951 Convention relating to the Status of Refugees (‘the Refugee Convention’) given the individual circumstances of AMA's case. The UNHCR drew specific attention to: the SSHD's failure to address the safety of the route of return from Mogadishu to Qoryoley, AMA's home area; the internal relocation alternative to Mogadishu should not be a relevant consideration when making a decision on the application of article 1C(5); country background reports post-dating the country guidance in MOJ and others (Return to Mogadishu) Somalia CG v SSHD [2014] UKUT 00442 (IAC) demonstrating that clan tensions continue and members of minority clans remain at a particular disadvantage, such that any improvements in Somalia cannot be considered fundamental and durable.

7

On 26 April 2017 AMA was convicted of using threatening words or behaviour, in relation to which he was fined and made the subject of a restraining order.

8

On 13 June 2017 a decision was made to cease AMA's refugee status and refuse his human rights claim. The SSHD expressly considered the UNHCR submissions and accepted that travel between Mogadishu and Qoryoley may expose [AMA] to risk” but that he could safely reside in Mogadishu. The SSHD did not address the submission made by the UNHCR that this would in effect require AMA to make use of the internal relocation alternative and was inappropriate for the purposes of the cessation of refugee status.

Appeal to FTT
9

AMA's appeal to the FTT was successful. The FTT concluded that the family history of sustained and egregious persecution over many years was such that article 1C(6) of the Refugee Convention and the SSHD's policy pursuant to this as contained in the Asylum Policy Instruction on Revocation of Refugee Status dated 19 January 2016 (‘the Revocation API’), applied in AMA's favour.

10

At [15] to [16] of its decision the FTT rehearsed a summary of the persecution endured by M and her family members from 1996 to 2015 and noted that this account had never been disputed by the SSHD. M's asylum claim was granted without the necessity of an appeal and her statement must have been broadly accepted to be true. The FTT also noted an absence of any evidence from the SSHD to suggest otherwise. On that basis at [17], the FTT found it hard to imagine a scenario that better fits the provision in Art 1(C)(6). The FTT adopted the language of the Revocation API in reaching the following conclusion:

“Both [AMA] as a young child, and his immediate family, suffered ‘ truly atrocious forms of persecution’, while they were in a camp, where they survived and witnessed ‘ particularly traumatic violence against family members, including sexual violence’”.

11

The FTT therefore found at [18] that the provisions of Article 1C and para 339A of the Immigration Rules did not apply to [AMA] and so his protection cannot be revoked”.

12

Given this finding, the FTT made it clear at [20] that he did not need to address the submission, based upon MOJ, that AMA could return to Mogadishu, but in any event found “ for what it is worth and without further argument” that AMA could not safely return to Mogadishu in light of the guidance in MOJ.

Appeal to the Upper Tribunal (‘UT’)
13

At the hearing before me, Mr Tan confirmed that the SSHD wished to rely upon the grounds of appeal dated 20 November 2017 and did not place reliance upon the later grounds dated 5 January 2018. The 2017 grounds of appeal are three-fold:

  • (1) As a dependent on his mother's refugee claim AMA has not demonstrated that he endured the traumatic experiences that she did in Somalia.

  • (2) Article 1C(6) of the Refugee Convention cannot override paragraph 339A of the Immigration Rules.

  • (3) The FTT failed to properly apply MOJ.

14

Permission was initially refused by the FTT, but granted by the UT in a decision dated 23 March 2018. UT Judge Macleman observed that if the judge was right about the facts, it would be hard to argue that the judge went wrong at [17] in finding that the scenario fitted Article 1C(6) of the Refugee Convention and the SSHD's guidance”. Judge Macleman considered that since article 1C(6) is not replicated within 339A of the Immigration Rules, their interaction was not dealt with by the FTT and “ qualifies for debate and answer”.

15

In a Rule 24 notice dated 18 May 2018, it was submitted on AMA's behalf that the FTT did not err in law in applying article 1C(5) of the Refugee Convention, when that is mirrored in article 11 of the Qualification Directive and the SSHD's own policy. Pausing there, although the FTT decision and the SSHD's grounds of appeal refer to article 1C(6), as will be seen from the discussion below, this was a mistake and both must have meant to refer to article 1C(5), because article 1C(6) applies to those who are stateless. No one has ever suggested this regarding AMA.

16

AMA's solicitors also provided the UT with a copy of MS (Art 1C(5)-Mogadishu) Somalia [2018] UKUT 00196 (IAC) (promulgated on 22 March 2018) and placed reliance on this in a covering letter dated July 2018.

17

At the beginning of the hearing before me, Mr Tan realistically acknowledged that the first ground of appeal in which AMA is described as a dependent on his mother's refugee claim and a person who has not necessarily experienced very similar traumatic experiences to her, is difficult...

To continue reading

Request your trial
11 cases
  • Upper Tribunal (Immigration and asylum chamber), 2019-08-19, RP/00024/2017
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 19 August 2019
    ...symmetry between a decision determining refugee status and cessation. In AMA (Article 15(c) – proviso – internal relocation) Somalia [2019] UKUT 11 (IAC), the Upper Tribunal found that changes in a refugee’s country of origin affecting only part of the country may, in principle, lead to ces......
  • Secretary of State for the Home Department v MS (Somalia)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 29 July 2019
    ...instructed by Turpin & Miller LLP, for the Claimant. Cases referred to: AMA (Article 1C(5) – proviso – internal relocation) Somalia [2019] UKUT 11 (IAC) AQ (Somalia) v Secretary of State for the Home Department [2011] EWCA Civ 695; [2011] Imm AR 779; [2011] INLR 762 AS (Afghanistan) v Secre......
  • Upper Tribunal (Immigration and asylum chamber), 2020-02-04, RP/00072/2017
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 4 February 2020
    ...or orally at the relisted hearing on the recently reported case of AMA (Article 1C(5) – proviso – internal relocation) Somalia [2019] UKUT 00011 (IAC). The remaking of this appeal is reserved to UTJ Jackson in the Upper Tribunal in light of the detailed legal submissions already made in thi......
  • Upper Tribunal (Immigration and asylum chamber), 2021-03-08, RP/00171/2018
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 8 March 2021
    ...symmetry between a decision determining refugee status and cessation. In AMA (Article 15(c) – proviso – internal relocation) Somalia [2019] UKUT 11 (IAC), the Upper Tribunal found that changes in a refugee’s country of origin affecting only part of the country may, in principle, lead to ces......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT