Upper Tribunal (Immigration and asylum chamber), 2020-02-04, RP/00121/2018
| Jurisdiction | UK Non-devolved |
| Date | 04 February 2020 |
| Published date | 17 March 2020 |
| Hearing Date | 02 December 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | RP/00121/2018 |
Appeal Number: RP/00121/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00121/2018
THE IMMIGRATION ACTS
|
Heard at Royal Courts of Justice |
Decision & Reasons Promulgated |
|
On 2 December 2019 |
On 4 February 2020 |
|
|
|
Before
UPPER TRIBUNAL JUDGE RINTOUL
Between
Mr SELYM SEYD SALUM
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Nicalaou, instructed by Turpin & Miller Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer
DECISION AND REASONS
-
This is the re-making of an appeal against a decision of the respondent against a decision to deport him as a foreign national offender and upon refusal of his protection and human rights claim on 8 October 2018. His appeal against the decision was allowed by the First-tier Tribunal in a decision promulgated on 8 February 2019. For the reasons set out in my decision promulgated on 11 September 2019, that decision was set aside. A copy of that decision is set out in the annex.
-
The appellant arrived in the United Kingdom on 3 June 2001 and claimed asylum. That claim was refused and on an appeal he was found not to be credible. Following a further appeal in 2003, he was found to be a Somali national and from the Bajuni tribe. That is not in dispute. As the First-tier Tribunal noted at [3], the other parts of his claim, that his father and sister had been killed, and he had been in Kenya for only a few months after leaving Kismayo, were “quite unreliable”.
-
At the hearing on 2 December 2019 I heard evidence from the appellant. He adopted his witness statement adding that his family and friends had no money and were not able to support/assist him on return to Somalia. He said he did not know anybody in Somalia.
-
The appellant said that he spoke Arabic, Swahili and understood some Somali by which he meant a few words like mother and father. He said that he had gone to college in the United Kingdom, had had a cleaning job and had no savings, having been in prison for five years. Asked if he took full responsibility for his crime he said that he accepted what he did.
-
In cross-examination the appellant said that he came to the United Kingdom on his own. He said that he was from Ras Kamboli, which is an island in Somalia. He said that he had worked for about six years in the United Kingdom.
-
Asked if there was anything stopping him from getting work in Somalia, he said he did not know anybody who could help him to get a job and he would have no support. He said that he was able to get a job here through the Jobcentre. He said that he could understand a little Somali and what he had said at the hearing in 2003 that he spoke a little Somali. He said that the family friends were not coming to the hearing as they had children to look after.
-
There was no re-examination.
-
Mr Tufan submitted that, relying on MA (Somalia) and SB(refugee revocation; IDP camps) Somalia [2019] UKUT 358, in particular at [75] the relevant threshold here is that established in N and D. He submitted there was nothing here which reached that threshold, the decision in MOJ making it clear that there was no longer any clan based persecution (see MS at [76]).
-
Mr Tufan submitted that even if the appellant were in an IDP camp it would not reach the Article 3 threshold, asking me to note the appellant had managed to get employment in the United Kingdom, that there was nothing stopping him from getting a job in Mogadishu to where he would be expected to return and this would not be unduly harsh. He submitted further that there would be no risk from Al Shabaab in Kismayo if he were to return there.
-
Ms Nicalaou submitted that the appellant would likely to end up in an IDP camp and that this would on the facts of this case amount to an Article 3 breach. She submitted he had limited prospects for obtaining work as he had no support network, only a limited language skill in Somali and no support.
-
Ms Nicalaou submitted that there was a cumulative suicide risk in line with J v SSHD [2005] EWCA Civ 629. Ms Nicalaou accepted that there was no medical evidence to support this but it indicated an appellant’s subjective fear of return.
-
Ms Nicalaou submitted that Article 8 required also to be considered. She said it had only been considered in relation to Article 3 on the previous occasion. She submitted that there were great strides in his rehabilitation and very compelling circumstances.
The Law
-
The grounds of appeal in this case are set out in section 84 of the 2002 Act and are as follows:-
(1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought on one or more of the following grounds—
(a) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;
(b) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.
(3) An appeal under section 82(1)(c) (revocation of protection status) must be brought on one or more of the following grounds—
(a) that the decision to revoke the appellant's protection status breaches the United Kingdom's obligations under the Refugee Convention;
(b) that the decision to revoke the appellant's protection status breaches the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection.
-
Section 72 of the 2002 Act provides (so far as is relevant) as follows:-
Section 72 Serious criminal
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom is he is –
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least two years.
…
(9) Subsection (1) applies where –
(a) a person appeals under Section 82, 83 [F1, 83A] or 101 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground that to remove him from or to require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention, and
(b) the Secretary of State issues a certificate that presumptions under subsection (2), (3) or (4) apply to the person (subject to rebuttal).
(10) The Tribunal or Commission hearing the appeal –
(a) must being substantive deliberation on the appeal by considering the certificate, and
(b) if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the grounds specified in subsection (9)(a).
-
Judge Gribble in the First-tier Tribunal concluded for adequate and sustainable reasons that the Section 72 certificate was made out. I am satisfied that that decision was correct and it is evident from the skeleton argument and Rule 24 response served on 12 August 2019 that the appellant did not challenge that conclusion, submitting at [37] that the First-tier Tribunal had made no error of law in concluding that the appeal should be allowed by reference to Articles 3 and 8, making no challenge to the decision with respect to Section 72, nor is it averred that the appellant meets the requirements of the Refugee Convention.
-
In reaching my decision, I have had regard to the background evidence put before me, and to the submissions there on.
-
The starting point with respect to Country Guidance on conditions is MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC)J. Ms Nicolaou did not submit that I should depart from it.
-
It must be borne in mind that the question put to the Tribunal in MOJ was as follows:-
“Whether the current situation in Mogadishu is such as to entitle nationals of Somalia whose home area is Mogadishu or whose proposed area of relocation is Mogadishu to succeed in their claims for refugee status, humanitarian protection status under Article 15(c) or protection against refoulement under Articles 3 or 2 of the ECHR solely on the basis that they are civilians and do not have powerful actors in a position to afford them adequate protection”.
It is also noted that one of the appellants in that case, SSM, was seeking to revoke a deportation order passed on him as a result of a sentence of three years and four months’ imprisonment. It is also of note that paragraph 408 provides as follows:-
“408. It will, therefore, only be those with no clan or family support who...
To continue reading
Request your trial