Upper Tribunal (Immigration and asylum chamber), 2021-07-22, [2021] UKUT 203 (IAC) (Ainte (material deprivation, Art 3, AM (Zimbabwe)))

CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeUPPER TRIBUNAL JUDGE BRUCE, UPPER TRIBUNAL JUDGE O’CALLAGHAN
Appeal Number[2021] UKUT 203 (IAC)
StatusReported
Publication Date11 August 2021
Subjectmaterial deprivation, Art 3, AM (Zimbabwe)


Upper Tribunal

(Immigration and Asylum Chamber)


Ainte (material deprivation – Art 3 – AM (Zimbabwe)) [2021] UKUT 00203 (IAC)


THE IMMIGRATION ACTS


At: Field House

Decision Promulgated

On: 10th-11th March 2021

22 July 2021




Before


UPPER TRIBUNAL JUDGE BRUCE

UPPER TRIBUNAL JUDGE O’CALLAGHAN



Between


The Secretary of State for the Home Department

Appellant

and


Mahad Abdullahi Ainte

(no anonymity direction made)

Respondent



For the Appellant: Mr J. Anderson, Counsel instructed by the Government Legal Department

For the Respondent: Mr R. Toal and Mr T. Lay, Counsel, instructed by Brighton Housing Trust Immigration Legal Services

  1. Said [2016] EWCA Civ 442 is not to be read to exclude the possibility that Article 3 ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered include the location where the harm arises, and whether it results from deliberate action or omission.

  2. In cases where the material deprivation is not intentionally caused the threshold is the modified N test set out in AM (Zimbabwe) [2020] UKSC 17. The question will be whether conditions are such that there is a real risk that the individual concerned will be exposed to intense suffering or a significant reduction in life expectancy.

  3. The Qualification Directive continues to have direct effect following the UK withdrawal from the EU.



DECISION AND REASONS

  1. The Respondent, Mr Ainte (MAA), is a national of Somalia born on the 23rd October 1991. He has lived in this country since 2008 when he arrived, aged 16, and sought protection as a refugee. That protection was never granted. The Secretary of State was still considering submissions when, in November 2011, MAA received his first conviction, for possessing cannabis. Further convictions followed in 2013 and in April 2014 he was convicted of possession of a Class A drug (cocaine) with intent to supply. He was sent to prison for 4 years. It is therefore in the public interest that MAA be deported from this country.

  2. Before the First-tier Tribunal MAA advanced two reasons why the ‘automatic deportation’ procedure set out in s32 of the UK Borders Act 2007 should not apply to him.

  3. First, he submitted that he was entitled to protection as a refugee: s33(2)(b) of the UK Borders Act 2007 applied. Although the First-tier Tribunal was satisfied that MAA should not be denied protection as a result of his criminality, it rejected the submission that MAA had a currently well-founded fear of persecution on any of the alternative or cumulative bases advanced by him. The appeal was therefore dismissed on Refugee Convention grounds and MAA was refused permission to appeal against that decision.

  4. The second limb of the appeal before the First-tier Tribunal was that the removal of MAA to Mogadishu would result in him facing a real risk of living in conditions of such extreme material deprivation, and so lacking in security, that they would constitute inhuman and degrading treatment under Article 3 ECHR1 and/or Article 15(b) of the Qualification Directive2, and/or amount to “very compelling circumstances” establishing that deportation would be a disproportionate interference with MAA’s Article 8 private life. The First-tier Tribunal found this argument to be made out, and consequently allowed the appeal on both human rights and humanitarian protection grounds. It was that finding of fact which was the subject of the Secretary of State’s appeal to the Upper Tribunal, heard on the 15th October 2020.

  5. By a decision dated the 25th October 2020 Upper Tribunal Judge Bruce found that the First-tier Tribunal had erred in its approach. Paragraph 10 of the ‘error of law’ decision explains why:

The real difficulty with the decision is in the gaps in the reasoning, and the failure to make clear findings. At its §39 the Tribunal rehearses the views of [country expert] Ms Harper about what “might” happen to [MAA] if he returned to Mogadishu, but nowhere does the Tribunal go on to reach its own conclusion, applying the appropriate standard of proof and considering the relevance of its own findings about [MAA] circumstances, in particular that he is not a member of the Ashraf minority. As the Secretary of State points out, Ms Harper proceeded on the basis that he was, and it was for the Tribunal to determine whether the views expressed at paragraph 8.10 of her report, and summarised at the Tribunal’s §39, survived that rejection. It was entirely possible that they would, but some findings had to be made. Insofar as such conclusions are reached at §40 of the decision, these are flawed for lack of reasoning: there was for instance no exploration of why [MAA] might find himself without clan support”.

  1. Judge Bruce directed that the decision, insofar as it related to human rights (Articles 3 & 8) and Article 15 of the Qualification Directive, be re-made. This is that remade decision, to which both members of the panel have contributed. We were referred to a great deal of evidence and had the benefit of detailed argument from Counsel about the proper approach to take in cases involving material deprivation generally, and in the context of Somalia in particular. We begin by addressing those legal issues, before considering and determining MAA’s claim.


The Legal Framework

  1. As we are considering protection grounds our starting point must be the applicable country guidance on Somalia. Although new guidance is shortly to be forthcoming, at the date of this appeal the current country guidance is MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). Neither party has asked us to depart from that guidance. The material part of it, for the purpose of this appeal, is set out in the headnote:

  1. A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer.

  2. The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assist with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.

  3. If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:

  • circumstances in Mogadishu before departure;

  • length of absence from Mogadishu;

  • family or clan associations to call upon in Mogadishu;

  • access to financial resources;

  • prospects of securing a livelihood, whether that be employment or self employment;

  • availability of remittances from abroad;

  • means of support during the time spent in the United Kingdom;

  • why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.

  1. Put another way, it will be for the person facing return to explain why he would not be able to access the economic opportunities that have been produced by the economic boom, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away.

  2. It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms.

  3. The evidence indicates clearly that it is not simply those who originate from Mogadishu that may now generally return to live in the city without being subjected to an Article 15(c) risk or facing a real...

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