The Secretary of State for the Home Department v MS (Art 1C - Mogadishu)
| Jurisdiction | UK Non-devolved |
| Judge | Kopieczek,Kopieczek UTJ |
| Judgment Date | 22 March 2018 |
| Neutral Citation | [2018] UKUT 196 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 22 March 2018 |
[2018] UKUT 00196 (IAC)
UPPER TRIBUNAL JUDGE Kopieczek
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
MS (Art 1C(5)-Mogadishu) Somalia
The Secretary of State is not entitled to cease a person's refugee status pursuant to Article 1C(5) of the Refugee Convention solely on the basis of a change in circumstances in one part of the country of proposed return.
For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondent: Mr S Vokes, Counsel instructed by Turpin & Miller Solicitors
Although the appellant in these proceedings is the Secretary of State, I continue to refer to the parties as they were before the First-tier Tribunal (“FtT”).
The appellant is a citizen of Somalia, born in 1989. He arrived in the UK on 21 November 2002 with his mother and six siblings. His mother claimed asylum, with him and his siblings as dependants. Her application for asylum was refused but she was granted exceptional leave to remain on 19 January 2003 and leave to remain was then granted until 19 May 2007 to her, the appellant and his siblings.
On 18 November 2011, the appellant's mother and siblings, but not the appellant, were granted asylum and indefinite leave to remain (“ILR”). Notwithstanding the appellant's criminal offending from 2006, it was decided not to pursue deportation proceedings against him and he was granted discretionary leave on 14 February 2012 until 14 February 2015. On 8 October 2012 his discretionary leave was curtailed and on the same day he was granted asylum and leave to remain until 8 October 2017.
On 24 September 2012, in the Crown Court at Warwick, the appellant was convicted of an offence of conspiracy to defraud and on 31 March 2014 he received a sentence of 21 months' imprisonment. There was also a one month's consecutive sentence of imprisonment for breaches of previous orders and failing to surrender to custody.
On 28 August 2014 and 13 November 2014 he was served with notice of liability to deportation and invited to submit reasons as to why he should not be deported. On 1 May 2015 he was notified of the Secretary of State's intention to cease his refugee status.
On 7 January 2016 in the Crown Court at Warwick the appellant was further convicted of assault by beating, and on 24 February 2016 convicted of assault occasioning actual bodily harm. On 15 April 2016 he was sentenced to a total of 28 months' imprisonment. Although he completed his custodial sentence on 19 November 2016, after a period in immigration detention he was recalled to prison on 25 February 2017 to serve the remainder of his sentence because of a failure to keep appointments and a failure to comply with requirements as to his residence.
Earlier, on 15 April 2015, the respondent refused a protection and human rights claim, these being the Secretary of State's decisions to make a deportation order and to revoke the appellant's refugee status. His appeal came before First-tier Tribunal Judge Andrew (“the FtJ”) on 16 August 2017. She allowed the appeal in terms of the respondent's decision to cease refugee status and consequently concluded that the appellant was entitled to protection under the Refugee Convention and/or Article 3 of the ECHR, thus concluding that he could not be deported. She allowed the appeal with evident reluctance, in the light of what she described as the appellant's “appalling” criminal history.
Before setting out the respective parties' arguments, it is necessary to summarise the FtJ's decision.
The FtJ referred to the appellant's extensive history of criminal offending, starting in 2006. I can summarise the appellant's offences as including offences of dishonesty, public order offences, assault, damaging property, and possession of drugs. I have already referred to his most recent offending and incidentally, the most serious.
The FtJ summarised the appellant's claim as being that he fears persecution in Somalia as a member of a minority clan, and would thus be at real risk from the general civil unrest in the country.
In relation to the burden and standard of proof she said this at [23]:
“In relation to the cessation of the Appellant's refugee status it is for the Respondent to prove, on the balance of probabilities, that there has been a fundamental and enduring change in the country situation in Somalia to allow for the Appellant's refugee status to be revoked in the whole of the country and not just part of the country. It follows from this that issues of internal relocation are not relevant considerations”.
The FtJ stated that otherwise, the burden of proof is on the appellant and she gave an appropriate self-direction on the standard of proof.
The FtJ heard oral evidence from the appellant. She noted that he had a number of convictions and concluded that he had no respect for the criminal law of the UK or any respect for authority. However, she said that her first task was to consider whether or not his refugee status should be revoked. She noted at [30] that his refugee status was granted on 8 October 2012, following the conviction on which the respondent sought to rely in her subsequent decision to make a deportation order.
Referring to the application of s.72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) she noted that the appellant's refugee status was granted on 8 October 2012 following his conviction on 24 September 2012 and said that it was difficult to understand how the respondent could rely on that conviction for the purposes of the s.72 certification. She pointed out that the appellant was convicted shortly before he was granted refugee status and that it must follow therefore, that as at the date of grant of refugee status the respondent did not consider that the appellant's conviction was for a particularly serious crime or that he was a danger to the community (as set out in s.72). She concluded that the s.72 certificate could not be maintained.
The FtJ referred to the sentencing judge's remarks in relation to the most recent convictions whereby it was said that the assault was of a most serious nature. She reiterated that the appellant had an appalling criminal history and she said that she had no doubt that he would continue to offend in the future. She commented that he does not learn by his previous convictions and she said that she was not satisfied that there was anything in what he says in his witness statement that would be a protective factor to prevent him offending in the future.
At [37] she referred to the contention that the appellant had been diagnosed with schizophrenia. However, she pointed out that there was no medical evidence to that effect before her. No adjournment had been applied for, she said, in order for such evidence to be obtained. She noted that he had been seen by a mental health unit but there was no evidence of what the outcome of any mental health assessment was. Although he had been prescribed Risperidone at HMP Birmingham, all the notes referred to were that the appellant had self-reported having paranoid schizophrenia and a personality disorder.
With reference to a report from a Dr Chisholm, she said that that was dated 1 August 2016, over a year before the hearing before her, and prior to the appellant's latest incarceration. She referred to various aspects of Dr Chisholm's report and noted the conclusion that “he does not suffer from a psychotic diagnosis”. She noted the tentative diagnosis of personality disorder.
At [47] she referred to inconsistency in the appellant's claim about his mother having returned to Somalia. Medical notes indicated that he had said that his mother had gone on holiday to Somalia but had not returned, although the appellant claimed that he had never said that his mother had returned to Somalia.
The FtJ concluded at [48] that she could not find as a fact that the appellant no longer understands his native language. Her assessment was that they would have used Somali in their household, before and after he came to the UK with his mother and siblings.
However, she also noted that in the appellant's mother's appeal it was accepted that she is Ashraf, a minority clan, and that she came from Kismayo, not Mogadishu.
In the following paragraph she concluded that it was unlikely that the appellant would receive any support in Somalia from his family in the United Kingdom, finding it unlikely that the appellant's mother and sister are employed. The appellant's evidence, which by implication the FtJ accepted, was that the whole family were on benefits.
Next, the FtJ made reference to the decisions in AMM & others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC) and MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). She found that the appellant was not from Mogadishu but from Kismayo, and from a minority clan, the Ashraf. She found that he has no former links with Mogadishu, having left Somalia at a young age. She further concluded that she could not be satisfied that the appellant has access to funds or that any other form of clan, family or social support is likely to be realistic. She said that she made that assessment knowing that the appellant claimed that his mother had returned to Somalia whilst he was incarcerated. However, she said that there was nothing other than this before her to suggest that the appellant does still have family in that country. She found that the appellant has no skills, never having formally been employed in the UK. Although he has some GCSEs and has undertaken some basic courses whilst incarcerated, none of those had led to employment in the UK. She found that they were...
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