Upper Tribunal (Immigration and asylum chamber), 2020-05-22, JR/05428/2019
| Jurisdiction | UK Non-devolved |
| Date | 22 May 2020 |
| Published date | 05 June 2020 |
| Hearing Date | 22 May 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/05428/2019 |
Case Number: JR/5428 /2019
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
JR/5428/2019
Field House,
Breams Buildings
London
EC4A 1WR
22nd May 2020
BEFORE
THE HONOURABLE MRS JUSTICE FOSTER DBE
BETWEEN:
THE QUEEN (on the application of YA)
Applicant
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Miranda Butler, instructed by Wilson Solicitors LLP, appeared on behalf of the Applicant.
Jack Anderson, instructed by the Government Legal Department, appeared on behalf of the Respondent.
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JUDGMENT
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MRS JUSTICE FOSTER:
Introduction
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This is a claim for judicial review of the respondent Secretary of State for the Home Department (“SSHD”)’s decision of 15 October 2019 refusing to treat further submissions made by the applicant as amounting to a fresh claim under paragraph 353 of the Immigration Rules (“IRs”). It is also a challenge to a further and supplementary decision dated 6 January 2020 which gave extended consideration to further psychiatric materials concerning the mental health of the applicant and provision of treatment on return.
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The issues which I have to decide concern whether the Secretary of State erred in concluding, initially on 15 October 2019, that the applicant YA does not have a real prospect of establishing before an Immigration Judge that his removal to Somalia would cause the UK to be in breach of Article 3 of the ECHR on account of the risk of his suicide.
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This case has a significant history. YA’s right to remain in the UK was first curtailed in the light of his conviction in 2015. There has been a large number of individual decisions concerning him since then; at one point his removal to Somalia was actually in train but aborted once aboard the aeroplane taking him back to Somalia.
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This judgment is divided into the following sections
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Background paragraphs 5-30
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Medical Material paragraphs 31-49
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The Impugned Decisions paragraphs 50-72
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Legal Framework paragraphs 73-119
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The Applicant’s Case paragraphs 120-126
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Consideration paragraphs 127-152
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AM in the Supreme Court paragraphs 153-165
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Summary of Conclusion paragraphs 166-176
a. Background
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The claimant was born in Somalia in 1988. His father owned a small business before the Somalian Civil War. His parents, who died natural deaths in the early 1990s, had lived in the Modena District of Mogadishu when he was a young child. His grandmother brought him up with his siblings.
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YA entered the UK aged about 14 on a trip organised by his grandmother, with his family, in October 2003; he has two brothers in the UK, and at least one cousin. There is evidence of other more distant family members still living in the Mogadishu area. He claimed asylum on entry as a member of the Reer Hamar minority clan and has described an incident where he was kidnapped aged 13 or 14 by a criminal gang to obtain money from his family. After several days of ill-treatment including being hung out of a window and being beaten, he was released when the family paid the ransom. He also described abusive forced work as a shoe-shiner between 2001 and 2003 which the SSHD has recognised as falling within the description of modern slavery.
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On 28 July 2008 aged 19 he was convicted of rape and conspiracy to rape a woman over the age of 16 and sentenced to 9 years imprisonment in August 2009. He had one previous conviction from 2007 for assaulting a police officer and being drunk and disorderly. The rape and conspiracy to rape were committed on 10 August 2007 with three other men, in Central London, and involved the gang rape of a 16-year-old girl whom they had come across in Trafalgar Square after the clubs had closed. The victim was described as alone, lost, without money and under the influence of drink. She went with the applicant and others to a flat and was gang raped within 20 minutes of arriving. Her sanitary protection was forcibly removed, and she was hit and bruised when resisting. In the course of the rapes, photographs of her were taken, although not by the claimant.
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At trial, YA’s defence to the effect that she had consented was described by the judge as “absurd”. The circumstances of the crime were such as to cause the judge to describe the defendants as having no respect for human beings, reflecting that the sounds of her hysterical distress and screaming could be heard on the 999 call made by neighbours, and that the victim would suffer severe and enduring psychological harm as a result of the attack. None of them had been working, they spent their time hanging about at night in the West End when the clubs were closing. The judge said the applicant’s only mitigation was his age. YA continues to deny his guilt, still maintaining it was consensual sex.
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YA was released from prison on 16 August 2012 but recalled on 23 May 2014, then bailed for offences of alleged GBH common assault and theft, which were eventually dropped. Whilst in prison he was convicted of an offence of causing another to convey a mobile phone into prison and sentenced to a further six months to be served concurrently.
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On 21 April 2016 the Secretary of State decided to cease YA’s refugee status and to deport him to Somalia. This decision was unsuccessfully appealed. On 4 July 2017 FTTJ Hollingworth heard evidence including from the claimant, and in a long, careful and detailed judgement dismissed YA’s appeal against the removal of status and refused his further protection and human rights claims.
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The decision of FTTJ Hollingworth included the finding that a person in the position of the claimant, an ordinary civilian, would no longer face a real risk of persecution or harm such as required protection under Article 3 ECHR or Article 15(c) of the Qualification Directive. There had been a durable change in the situation concerning Al-Shabab in Mogadishu, a reduction in civilian casualties and no real risk of forced recruitment to Al-Shabab for civilian citizens of Mogadishu including recent returnees from the West. The judge held that some money from abroad, namely from his family in the UK, would be available to him initially while he was seeking employment, and that he had been equipped by a series of prison courses to embark on employment in joinery and construction or indeed catering or cleaning on his return to Somalia. Taking into account details of the country situation in the relevant case law, the judge noted there was a vibrant construction industry in Mogadishu.
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In light of the circumstances of his criminal record, and having full regard to the consequences of return, the judge held that the active refoulement was a proportionate response to the danger posed by the claimant to the community. He found in particular that it was a matter of great concern that the claimant had not completed work regarding his sexual offending, and he retained unhealthy and distorted views towards women and relationships, and authority figures, in particular the police. It was clear the claimant had failed to accept responsibility for his criminal behaviour. He characterised the offending as particularly serious and without mitigating factors.
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The Judge also found the applicant was not socially and culturally integrated in the UK due to his behaviour. He had not established that he had a family life in the UK and for most of his life had not been here lawfully. In all the circumstances the FTTJ held there would be no breach of Article 8 ECHR in respect of the applicant’s private or family life if he were to be deported as a Foreign National Offender.
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Permission to appeal this decision was refused and also refused for a subsequent judicial review application made in September 2017. In February 2018 the Court of Appeal refused permission to appeal against the High Court’s decision to refuse permission.
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On 21 September 2018 the applicant was served with removal directions effective 9 October 2018. YA had become appeal rights exhausted. That day further representations were made by his solicitors and refused that day by the SSHD. The applicant’s removal in October 2018 was thwarted by an incident on the aeroplane involving a passenger protest, and the plane was impeded from leaving due to the disruption.
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YA was returned to immigration detention. On 25 October 2018 he was found unresponsive in his cell having taken an overdose of prescribed medication. It was noted in a medical report in November by a clinical practitioner that he had historically attempted to take his own life “through overdose and tying ligature”. 50 mg Sertraline was prescribed.
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On 22 December 2018, a Dr Thomas sent an initial opinion by email after assessing YA at HMP Bedford on 20 December 2018. He explained that YA had told him he had tried to kill himself twice, he believed he would be persecuted because he was from a minority tribe in Somalia. He was described as dishevelled, poorly kempt, although his attention and concentration were alright. Dr Thomas said YA had symptoms suggestive of a diagnosis of a moderate depressive episode with anxiety and...
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