Upper Tribunal (Immigration and asylum chamber), 2014-04-11, DA/00735/2013
| Jurisdiction | UK Non-devolved |
| Date | 11 April 2014 |
| Published date | 06 May 2014 |
| Hearing Date | 06 February 2014 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/00735/2013 |
Appeal Number:DA/00735/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: DA/00735/2013
THE IMMIGRATION ACTS
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Heard at Manchester |
Determination Promulgated |
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On 6 February 2014 |
On 11th April 2014 |
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Before
The President, The Hon. Mr Justice McCloskey
Upper Tribunal Judge Chalkley
Between
OMAR HASSAN
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr T Royston (of Counsel), instructed by Parker Rhodes Hicknotts Solicitors
For the Respondent: Ms Johnstone, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
INTRODUCTION
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The Appellant is of Somalian nationality and is aged 51 years. This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “Secretary of State”) dated 28th March 2013, that the Appellant be deported from the United Kingdom on the ground that this would be conducive to the public good, pursuant to section 3(5)(a) of the Immigration Act 1971 and section 32(1) of the UK Borders Act 2007. The Secretary of State also refused the Appellant’s claim for refugee status. His ensuing appeal to the First-Tier Tribunal (the “FtT”) was dismissed. This appeal gives rise to consideration of the decision of the Upper Tribunal in AMM and Others [2011] UKUT 445 (IAC).
THE REFUSAL OF ASYLUM
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On 13th January 2012, the Appellant was sentenced at Cambridge Crown Court for that the Judge described as “a continuing fraud that you perpetrated on the Driving Standards Agency in relation to driving tests”. The Judge continued:
“You admitted that you had fraudulently attended to take the tests on behalf of other people …….
I am afraid I simply cannot accept that there was no financial motive …….
You are a man of previous good character …………….. (the offences) involved deliberate deception of a public official ……………… [and] ………….. an intention to put on the road people who have no qualification to drive, with the attendant dangers that that presents to other road users ……………. and it provides an identification document, to be used by whoever you are doing it for, which they are not entitled to.”
The Appellant’s offending was aggravated by the consideration that it included offences committed while on bail. The Judge described his offending as “a particularly serious form of fraud”. Giving him full credit for his guilty plea, he sentenced him to 18 months imprisonment and disqualified him for driving for 12 months. By statute, the maximum punishment for this type of offence is 10 years imprisonment.
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On 2nd April 2012, consequent upon the aforementioned convictions, the Secretary of State determined to make a deportation order in respect of the Appellant. On 5th May 2012, the Appellant responded by making a fresh claim for international protection, in the following terms:
“My removal to Somalia would be contrary to the UK’s obligations under ECHR, because …….. there is a real risk that I would suffer serious harm as defined in HC395, paragraph 339D and Article 3. In particular I would face:
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A real risk of suffering inhuman and degrading treatment or being unlawfully killed.
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A real risk of a serious and individual threat to my life by reason of indiscriminate violence in a situation of internal armed conflict …….”
He asserted that he would be vulnerable to the aforementioned types of proscribed treatment as the member of a minority group, which he identified as Sufi Muslims. The Appellant claimed that he would suffer proscribed treatment at the hands of the terrorist organisation Al-Shabab (“AS”). He highlighted the length of his exile from Somalia, 13 years. He asserted that he has no family or friends in Somalia. He claimed that he would not receive adequate government protection there. He further claimed to be a prominent member of the Somalia community in Manchester, where he had participated in demonstrations and television debates in which he had condemned AS. Finally, he contended that his deportation would be in contravention of the rights enjoyed by him, his spouse and his son under Article 8 ECHR.
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The Appellant’s application for asylum was refused in a detailed letter, dated 28 March 2013. This noted his assertion that he had left Somalia in 1991 upon the outbreak of the civil war. It recorded that he had arrived in the United Kingdom in December 2000 and claimed asylum. On 19th March 2001, the Appellant’s first asylum claim was refused. He was granted exceptional leave to remain, expiring on 19th March 2005. On 6th October 2005, his application for indefinite leave to remain was granted. This was his immigration status at the time of his offending and the ensuing impugned decision of the Secretary of State.
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The refusal letter also contains the following noteworthy passages:
“It is noted that your current claim forms much the same basis as your original claim for which you were interviewed substantively on 22 December 2000”.
The letter continues, however, highlighting the following factors:
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When the Appellant first claimed asylum in December 2000, he claimed to have left Somalia in late 2000 after his life had been threatened upon his refusal to travel from Walaweey to Mogadishu. In the same claim, he had alleged arrest in March 1997 with ensuing detention for six months.
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In contrast, the Appellant’s renewed claim for asylum in 2012 was based on an assertion that he had left Somalia in 1991 due to the civil war. The decision maker considered this a fabrication.
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The Appellant is a member of the Rahanweyn Clan, which belongs to Southern Somalia. The relevant country evidence “strongly indicates” that members of this clan live predominantly in Southern Somalia. The Appellant would be able to avail of their support and assistance upon return.
(d) The letter of decision then gave extensive consideration to conditions in Mogadishu and the decision of the Upper Tribunal in AMM, concluding:
“It is proposed to deport you to Mogadishu by air. Therefore, further to the above case law, it is not considered that you will be at risk upon your return to Somalia.”
(e) The Appellant’s claims under Articles 2 and 3 ECHR were rejected on the basis that he had not demonstrated a real risk of suffering any of the relevant types of proscribed treatment “because it is not accepted that you are of any interest to the interim Somalia Government or the Al Shabaab.”
(f) It was considered, in the alternative, that he could avail himself of the protection of the Transitional Government Forces and support from his Clan.
(g) The claim for humanitarian protection was rejected on two grounds. The first was that the Appellant did not qualify for this discrete form of protection in any event. The second was that he is excluded from the protection provided by the Qualification Directive, pursuant to Article 17(1)(b) and Rule 339D(i) of the Immigration Rules, as he has committed a serious offence which generated a sentence of 18 months imprisonment.
(h) Finally, the Appellant’s claim under Article 8 ECHR was rejected by reference to paragraphs 398 and 399 of the Immigration Rules on the grounds that (in summary) the potent public interest in play outweighed the competing factors, with the result that deportation would not be disproportionate in his particular circumstances.
THE DECISION OF THE FtT
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We distil the following findings from the relevant passages in the determination of the FtT:
(a) The Appellant’s asserted fear of prosecution is based on his membership of a minority clan. This is not demonstrated since this clan can live in Somalia without fear of harm.
(b) There is no specific threat to the Appellant.
(c) The Appellant has no profile which would make him of interest to any relevant organisation upon his return to Somalia. The Secretary of State’s assessment of this discrete issue would prevail.
The remaining findings in the determination relate mainly to the consideration, and rejection, of the Appellant’s case under Article 8 ECHR.
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We turn to consider the terms in which the Appellant’s claims under Articles 2 and 3 ECHR and his claim for humanitarian protection were dismissed. The FtT stated in [44]:
“It had been submitted on behalf of the Appellant that the conditions in Somalia were such that the Appellant’s rights under humanitarian protection would be raised as the conditions are such that it would not be right to return individuals who would face fear of their life and safety. However we do not find that the evidence...
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