Upper Tribunal (Immigration and asylum chamber), 2016-04-04, DA/01983/2014
| Jurisdiction | UK Non-devolved |
| Date | 04 April 2016 |
| Published date | 03 March 2017 |
| Hearing Date | 21 January 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/01983/2014 |
Appeal Number: DA/01983/2014
IAC-AH-CJ-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01983/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision and Reasons Promulgated |
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On 21 January 2016 |
On 4 April 2016 |
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Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
AHMED DAHIR ALI
Respondent
Representation:
For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondent: Mr A Fouladvand, Legal Rep, MAAS
DECISION AND REASONS
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This appeal comes back before me following a hearing on 21 September 2015 following which I decided that the First-tier Tribunal had erred in law in its decision, and set its decision aside. That error of law decision is attached as an annex to this decision. It is convenient to continue to refer to the parties as they were before the First-tier Tribunal.
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To reiterate, the appellant is a citizen of Somalia born on 4 October 1990. He appealed to the First-tier Tribunal (“FtT”) against a decision of the respondent dated 16 October 2014 to make a deportation order against him under the automatic deportation provisions of the UK Borders Act 2007 (“the 2007 Act”). That decision followed the appellant’s conviction for an offence of blackmail, for which he was sentenced to twelve months’ imprisonment in a young offenders’ institute.
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The First-tier judge (“FtJ”) dismissed the appeal on asylum and human rights grounds, and with reference to Articles 2 and 3 of the ECHR. As I indicated in the error of law decision, there has been no cross appeal on behalf of the appellant in relation to those conclusions, and they are to stand. The re-making of the decision is concerned with the extent to which an Exception to the automatic deportation provisions applies, not only in terms of the appellant’s purported reliance on EU rights but also in relation to any other Exceptions to the automatic deportation provisions, insofar as raised in the grounds of appeal to the FtT.
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After preliminary discussion in relation to the appellant’s reliance on EU rights, Mr Fouladvand indicated that the appellant’s aunt, Suad Ismail, would give evidence.
The oral evidence before the Upper Tribunal
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In examination-in-chief Ms Ismail adopted her most recent statement prepared for the hearing on 21 January 2016, albeit that the witness statement was undated.
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In cross-examination she was asked about what evidence she had of her Dutch citizenship prior to 2004. She said that her passport, issued on 15 May 2014, (produced at the hearing before me) was a renewal of her passport. Her first passport was issued to her in the Netherlands in 1998.
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In re-examination she said that when the appellant’s mother was alive she (the witness) was in the Netherlands and she sent money to her.
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When the appellant came to the UK in 2004, she herself was homeless in Cardiff, living in a hostel. The appellant was living in London. When the council gave her accommodation she brought the appellant to live with her because he had difficulties with the other aunt. He was a teenager and would come back late, for example. She looked after him when he came to her house.
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Since coming to live with her he has never lived independently, although he did go to prison, and he was in hospital for a hip replacement.
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In re-cross-examination Ms Ismail said that when the appellant was first living with his other aunt he was dependent on her because he was living with her. As to whether he was dependent on her, Ms Ismail, when he was in prison, she used to send him money to be put into his account so that he could buy toiletries and have money to phone them.
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As to the evidence before the FtT in terms of other relatives providing financial support for him when he was in Somalia, she said that she only knows that she was the one who sent him money. She then said that there was also her brother in Canada who sent him money. As to the money that she sent, the appellant’s mother was always trying to come out of Mogadishu but her husband wanted to stay there. On one occasion she sent $2,000, in 1995. Her brother in Canada was sending too much money, on several occasions. Once he sent $4,000 for the appellant’s mother and children to leave Mogadishu.
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In further re-examination she repeated that she became a Dutch citizen in 1998. She said that since then she had been the main provider for the appellant, his sister and the appellant’s mother. She was sending money to them for their living expenses. From 1998 until today he had not been supported by anyone else.
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In answer to a question from me she said that as regards the financial support from her brother in Canada, they all supported them together. Her brother in Canada went there before the civil war started. In 1996 he got married so financial support was difficult for him.
Submissions
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Mr Clarke submitted that the appellant is not able to rely on Exception 3 under s.33 of the 2007 Act (breach of rights under EU treaties), having regard to Recital 6 of the Citizens’ Directive (Directive 2004/38/EC) and the decision of the Upper Tribunal in Rose (Automatic deportation – Exception 3) Jamaica [2011] UKUT 00276 (IAC), at [15]–[17]. It was submitted that the appellant is not entitled to rely on regulations 19 and 21 of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”) because he is not a family member and the Directive expressly distinguishes between family members and other family members. This is reflected in regs 7 and 19. The appellant needs to be a family member for those provisions to apply. In order to be regarded as a family member he would need to be issued with a family permit and meet reg 8(5). In order to meet reg 8(5) or 8(2) he needs to satisfy reg 17(4).
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Furthermore, the appellant needs to be able to establish prior dependency or membership of a household, and present dependency or membership of the household. I was referred to the decision in Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 79 (IAC). The appellant would need to show a continued connection between him and the sponsor.
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In any event, he did not join the sponsor until 2005. Prior to that he had been dependent on the aunt that he lived with. Following the decision in Lim (EEA – dependency) [2013] UKUT 00437 (IAC) at [20], the dependency needs to be for a person’s essential needs. Given that the appellant was serving a term of imprisonment, it is difficult to see how the support she provided was for his essential needs.
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Furthermore, the evidence on the issue was confusing. It was not clear that the other brother in Canada ceased providing financial support. The evidence before the FtT was that there were other relatives providing support. There is no clear evidence of the financial support provided to the appellant.
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Under reg 8(2)(c) the appellant would need to establish that he continues to be dependent. (Dauhoo at [12]).
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In relation to an argument raised at the start of the hearing (before me) in terms of the appellant having an outstanding application from April 2007 for leave to remain, it was submitted that that matter is dealt with in the decision letter. Furthermore, because of the deportation decision, any leave is invalidated.
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As regards the Immigration Rules, the appellant is not able to rely on paragraph 399A because he has not been lawfully resident in the UK for most of his life. Furthermore, he is not socially and culturally integrated in the UK, taking into account his criminal offending.
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Additionally, there would not be very significant obstacles to his integration into Somalia having regard to the decision in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC), in particular at [349].
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So far as the appellant’s health is concerned, the latest piece of medical evidence dates back to 2009. The appellant would need to demonstrate that he would not be able to integrate in Somalia.
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Under paragraph 398(c) the appellant would need to demonstrate very compelling circumstances over and above those in paragraphs 399 and 399A. No such circumstances are apparent.
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The public interest needs to be taken into account, that public interest being expressed through primary legislation in the UK Borders Act 2007 and through the Immigration Rules.
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Mr Fouladvand relied on his skeleton argument. It was submitted that the appellant had made an application for further leave to remain on 30 April 2007, that application remaining outstanding.
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So far as EU rights are concerned, there was circumstantial evidence that proved that the appellant’s aunt was already a Dutch citizen when the appellant came to the UK....
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