Upper Tribunal (Immigration and asylum chamber), 2023-06-04, UI-2022-001979
| Appeal Number | UI-2022-001979 |
| Hearing Date | 12 May 2023 |
| Date | 04 June 2023 |
| Published date | 20 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-001979 (RP/00031/2020)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-001979 |
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First-tier Tribunal No: RP/00031/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 4 June 2023
Before
UPPER TRIBUNAL JUDGE KEBEDE
DEPUTY UPPER TRIBUNAL JUDGE LEWIS
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
AHMED ALI JAMA
Respondent
Representation:
For the Appellant: Ms J Isherwood, Senior Home Office Presenting Officer
For the Respondent: Mr G O’Ceallaigh, instructed by Wilson Solicitors LLP
Heard at Field House on 12 May 2023
DECISION AND REASONS
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This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Mr Jama’s appeal against the respondent’s decision to refuse his protection and human rights claim further to a decision to deport him under section 32(5) of the UK Borders Act 2007.
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For the purposes of this decision, we shall hereinafter refer to the Secretary of State as the respondent and Mr Jama as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.
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The appellant is a citizen of Somalia, born on 14 July 1994. In 1999/2000 he left Somalia because of the war and travelled to Ethiopia together with his two sisters, Lucky and Fadumo. He and his sisters entered the UK on 4 June 2004 after being granted indefinite leave to enter as refugees, in order to join their father who had arrived in the UK on 6 September 2000 and had been granted refugee status and indefinite leave to remain on 29 July 2001. The appellant lived with his father until 2013 when they were evicted for non-payment of the rent and he then lived in a hostel and subsequently with his sister and various friends.
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On 13 September 2013 the appellant was convicted of possession of a knife and was sentenced to 26 weeks’ imprisonment. On 1 June 2015 he was convicted of affray following a violent incident on 27 December 2014 arising out of a fight outside a kebab shop and was sentenced on 27 July 2015 to 13 months’ imprisonment. On 14 September 2015 he was served with a notice of intention to deport him and on 24 March 2016 the respondent notified him of the intention to cease his refugee status to which he responded on 11 April 2016. On 12 October 2016 a deportation order was made against the appellant and a decision was made to deport him from the UK, against which he lodged an appeal.
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On 30 May 2018 the appellant was convicted of conspiracy to supply a controlled Class A drug, heroin, and conspiracy to supply a controlled Class A drug, cocaine, and on 27 July 2018 he was sentenced to four years and eight months’ imprisonment. On 26 February 2019 the deportation order previously issued against the appellant was revoked for reconsideration and the previous deportation decision and the appeal against that decision were withdrawn. On 7 May 2019 the appellant was issued with a further decision to deport him and he was invited to seek to rebut the presumption under section 72 of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) that he had been convicted of a particularly serious crime and constituted a danger to the community. He responded on 11 June 2019. On 12 June 2019 the respondent notified the UNHCR of the intention to revoke the appellant’s refugee status. Written representations were received from the UNHCR in response, on 26 November 2019, recommending that cessation was not appropriate.
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On 21 May 2020 the respondent signed a deportation order against the appellant and on 28 May 2020 made a decision to refuse his protection and human rights claim. In that decision the respondent noted that the appellant had been granted refugee status on the basis of his father’s claim to be at risk as a member of the minority Midgan clan but considered that he was no longer dependent upon his father and that the circumstances in Somalia had changed such that minority clan members were no longer at risk, as set out in the case of MOJ & Ors (Return to Mogadishu) (Rev 1) (CG) [2014] UKUT 442. The respondent considered that the circumstances in connection with which the appellant had been recognised as a refugee had therefore ceased to exist and that paragraph 399A(v) of the immigration rules and Article 1C(5) of the Refugee Convention accordingly applied such that his refugee status had therefore ceased. The respondent considered further that the appellant would not face an Article 3 or Article 15(a) and (b) risk of harm on return to Somalia as he would be able to find employment in Mogadishu and support himself there. The respondent noted the appellant’s claim to be at risk on the basis of being associated with his father and sister who were known as popular Somali singers but found that she could not consider that submission since the supporting evidence in the form of YouTube and Facebook printouts had not been translated into English. The respondent did not consider that the appellant was at risk as a result of Al-Shabaab’s presence in Mogadishu or as a result of drought or a lack of family or clan support. Furthermore, it was considered that the appellant did not qualify for humanitarian protection in any event since he was excluded under paragraph 339D of the immigration rules as a result of his conviction and sentence. The respondent also certified that the presumption in section 72(2) of the NIAA 2002 applied to the appellant and that Article 33(2) of the Refugee Convention applied such that the Convention did not prevent his removal from the UK. As for Article 8, the respondent considered that there were no very compelling circumstances outweighing the public interest in the appellant’s deportation.
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The appellant became eligible for release on license on 2 June 2020 and he was detained under immigration powers. He was released on bail on 5 June 2020 and went to live with his sister Fadumo and her son. His license was due to expire on 26 March 2023.
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The appellant appealed against the respondent’s decision and his appeal was heard on 7 January 2022 in the First-tier Tribunal by Judge Hone. Judge Hone heard oral evidence from the appellant, his father and his two sisters. He had before him two country expert reports from Mary Harper, a psychological assessment from Robert Sellwood and a forensic psychiatric report from Dr Amlan Basu. The judge found that the appellant would be at risk in Mogadishu for two reasons: firstly, because he was a vulnerable man from a minority clan with no knowledge of Mogadishu and no family support in Somalia; and secondly, because his sister’s activities as a singer would not be approved of by Al-Shabaab who would connect him to her owing to her high profile which would then put him at risk. The judge found that the appellant was not excluded from refugee status as he had rebutted the presumption in section 72, being a low risk and of no danger to society. On the same basis he found that the appellant was not excluded from humanitarian protection and that his removal to Somalia would therefore be in breach of Article 3 of the ECHR and Article 15(c) of the Qualification Directive. The judge found further that the requirements of the private life exception to deportation in section 117C(4) of the Nationality, Immigration and Asylum Act 2002 were met and that there were very compelling circumstances over and above those requirements. The judge allowed the appellant’s appeal in a decision promulgated on 29 March 2022.
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Permission to appeal against that decision was sought by the respondent on four grounds. Firstly, that the judge had failed to give adequate reasons for his findings in regard to the appellant’s asylum claim, since he had failed to consider the respondent’s decision to cease the refugee status derived from his father’s claim as a minority clan member and to have regard to the relevant caselaw as to whether there had been any material change in circumstances in that respect, and he had failed to give adequate reasons for finding that the appellant had rebutted the presumption under section 72 of the NIAA 2002. Secondly, that the judge had failed to give adequate reasons for allowing the appeal on Article 3 ECHR and humanitarian protection grounds. Thirdly, with regard to Article 8, that the judge had erred in finding that very significant obstacles prevented the appellant’s integration into life in Somalia and had made no finding in respect to whether the appellant was socially and culturally integrated into life in the UK for the purposes of Exception 1 of section 117C. Fourthly, that the judge had failed to have regard to the high threshold for demonstrating very compelling circumstances and had failed to have adequate regard to all elements of the public interest.
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Permission was refused in the First-tier Tribunal, but was subsequently granted on a renewed application in the Upper Tribunal on 11 October 2022 on the following basis:
“3. As to 1(a), it is arguable that he judge...
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