Upper Tribunal (Immigration and asylum chamber), 2020-02-04, RP/00072/2017
| Jurisdiction | UK Non-devolved |
| Date | 04 February 2020 |
| Published date | 17 March 2020 |
| Hearing Date | 20 December 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | RP/00072/2017 |
Appeal Number: RP/00072/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00072/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15th May 2018, 18th October 2018, 22nd November 2018, 10th May 2019, 17th June 2019 (at the Royal Courts of Justice), 6th September 2019, and 20th December 2019. |
On 4th February 2020 |
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Before
UPPER TRIBUNAL JUDGE JACKSON
Between
aya
(ANONYMITY DIRECTION MADe)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr E Nicholson of Counsel, instructed by Thompson & Co
Solicitors
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer
DECISION AND REASONS
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The Appellant appealed against the decision First-tier Tribunal Judge Kainth promulgated on 22 December 2017, in which his appeal against the Respondent’s decision to refusal his protection and human rights claim (in the context of revocation of his protection status and deportation) dated 19 May 2017 was dismissed. In a decision promulgated on 14 February 2019, the Upper Tribunal found an error of law in that decision, set it aside and gave directions for the re-hearing of the appeal in the Upper Tribunal. The background to this appeal is set out in the error of law decision annexed and will not be repeated herein save as where necessary.
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The determination of this appeal, both at error of law and remaking stage has been complex and has necessitated a number of hearings, due to both practical difficulties and also a series of changes in relevant authority from both the Court of Appeal and the Upper Tribunal on matters directly relevant to this appeal. I am grateful to both Mr Nicholson and Mr Kotas for their detailed preparation for the hearings, clear skeleton arguments and schedule of evidence relied upon. To some extent, the detailed submissions made by both parties have been overtaken by subsequent authority and it is not therefore be necessary to refer in as much detail to all of the submissions made throughout the course of these hearings.
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As set out in paragraph 31 of the error of law decision annexed, the First-tier Tribunal found that the Appellant was excluded from humanitarian protection by virtue of paragraph 339D(iii) of the Immigration Rules due to his criminal offences and it was found that the Appellant did not meet any of the exceptions to deportation in paragraphs 398 and following of the Immigration Rules and sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002, nor were there any very compelling circumstances which would outweigh the public interest in deportation. These findings were unchallenged on appeal to the Upper Tribunal and expressly preserved in the decision annexed.
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The remaining issues to be determined were, broadly, in relation to cessation and protection and as to whether the Appellant would be at risk of a breach of Article 3 of the European Convention on Human Rights on return to Somalia. In light of developments in case law, a number of separate issues within these broad grounds of appeal have arisen. More specifically, the outstanding issues are as follows. First, whether or not the Appellant was a recognised refugee, such that the cessation provisions apply to him when considering the test to be applied to the second and third issues. Secondly, whether the Appellant is at risk in his home area of Luuq. Thirdly, if so, whether it would be reasonable and not unduly harsh for the Appellant to internally relocate to Mogadishu. Fourthly, the appropriate test to be applied for the purposes of Article 3 of the European Convention on Human Rights. Finally, whether the Appellant’s return would be in breach of Article 3.
The Appellant’s Immigration and criminal history
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The Appellant is a national of Somalia, born in Luuq and is a member of the Ashraf clan. On 28 July 2003 he was issued with entry clearance giving him indefinite leave to enter the United Kingdom to join his wife, who had been granted indefinite leave to remain in the United Kingdom as a refugee on 12 December 2002. Her status was on the basis that she was at risk on return to Somalia as a member of the Ashraf minority clan. The Appellant arrived in the United Kingdom on 5 August 2003 and has remained here since.
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On 7 May 2015, the Appellant was convicted of possession of a knife blade/sharp appointed article in a public place for which he was sentenced to a one year community order with unpaid work requirement and ordered to a pay victim surcharge and costs.
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On 12 April 2016, the Appellant was found to have failed to comply with the requirements of the earlier community order which was revoked and he was also convicted of theft from a person and assault occasioning actual bodily harm for which he was sentenced to one month imprisonment and 16 months’ imprisonment respectively, to run concurrently.
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On 18 October 2016, Appellant was convicted of aggravated vehicle taking for which he was sentenced to 9 weeks in prison and was disqualified from driving; and for driving a vehicle with excess alcohol for which he received a sentence of four weeks’ imprisonment to be served concurrently. On the same date he was also convicted of driving otherwise than in accordance with a licence and using a vehicle whilst uninsured for which no separate penalties were given.
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Since the decision which is the subject of this appeal, the Appellant has committed and been convicted of a further criminal offence, namely possession of an offensive weapon, for which he was sentenced to 15 months’ imprisonment, however this offence is not relevant to the decision under appeal which predates it.
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The Respondent notified the Appellant of the intention to cease his refugee status on 7 June 2016, pursuant to which the Appellant made representations on 12 June 2016. In the letter dated 7 June 2016, the Respondent set out the Appellant’s immigration and history, as well as background information as to the current situation in Luuq and the country guidance in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC).
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From the background evidence, the Respondent considered that Al-Shabaab were not in control in Luuq and the Appellant would not be at real risk of persecution or serious harm from them there. The Respondent went on in paragraph 14 to state, “However, it is accepted that in areas outside of Mogadishu, members of minority groups may face discrimination and human rights abuses which, in some circumstances, may amount to persecution. In view of the above it is considered that there may remain obstacles preventing you from returning to Luuq in the Gedo region where your parents were born.” The Respondent went on to identify Mogadishu as the place of return, where the Appellant had previously lived according to the statement of evidence form completed by his wife (and where her parents were born and where she had a house) and consideration was given as to whether the Appellant could resettle there.
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The UNHCR made representations in relation to the proposed cessation on 31 March 2017. First, it was noted that the trigger for consideration of cessation of status was the Appellant’s criminal convictions, which in the UNHCR’s opinion, was not appropriate. Secondly, it was not agreed that the situation currently pertaining in Somalia warranted the application of Article 1C(5) of the Refugee Convention on an individual or collective basis. The UNHCR did not consider that the situation in Somalia has fundamentally changed such as to apply this provision. Thirdly it was not accepted that the Respondent had discharged the burden of proof on her with evidence that demonstrated the specific fundamental changes needed for cessation, together with adequate consideration of the individual circumstances of the Appellant. Background evidence was referred to which recorded continuing persecution of minority clans, in particular in southern and central Somalia. A recommendation was made for a thorough assessment of the Appellant’s case, including his connections with Somalia; family ties; access to financial resources and the likelihood of remittances from abroad; as well as an assessment of relevant improvements since the Appellant was recognised as a refugee the purposes of Article 1C(5) of the Refugee Convention.
Explanation for refusal
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The Respondent refused the Appellant’s protection and human rights claim on 19 May 2017. It was noted by the Respondent that the Appellant derived his refugee status from his wife, who was granted asylum on the basis of her Ashraf ethnicity. It was found that there has been a significant and enduring change in the circumstances in which the Appellant was granted refugee status, as there is now no persecution on the basis of clan membership in Mogadishu and the Appellant’s Ashraf clan has a presence in Mogadishu. The Appellant would no longer be at risk on return to Mogadishu, nor at risk of any breach of Article 3 of the European Convention on Human Rights on the basis of clan...
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