Upper Tribunal (Immigration and asylum chamber), 2023-05-11, RP/00062/2020
| Appeal Number | RP/00062/2020 |
| Hearing Date | 25 January 2023 |
| Date | 11 May 2023 |
| Published date | 01 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2022-02411
First-tier Tribunal No: RP/00062/2020
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-02411 First-tier Tribunal No: RP/00062/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 11th May 2023
Before
UPPER TRIBUNAL JUDGE OWENS
Between
OMA
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms McCarthy, Counsel, instructed by Turpin Miller Solicitors
For the Respondent: Mr Clarke, Senior Presenting Officer
Heard at Field House on 25 January 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and any member of his family is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant and any other member of his family. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
Introduction
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This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Chohan promulgated on 12 May 2022 allowing the appellant’s appeal against the decision to refuse his protection and human rights claim. Permission to appeal was granted by First-tier Tribunal Judge Kebede on 31 October 2022.
Background
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OMA is a national of Somalia, who arrived in the UK on 7 October 2000 as an unaccompanied minor. On 15 May 2001, he was granted asylum and indefinite leave to remain on the basis that he is from the minority Shanshiya clan, in turn a subclan of the minority Benadiri clan, who were accepted by the Secretary of State at that time to be persecuted by majority clans.
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Between 2006 to 2018 OMA accumulated 19 convictions for 34 offences. Following a conviction for the offence of robbery on 6 July 2018, for which he received a prison sentence of 30 months, the Secretary of State made a decision to deport OMA. On 20 March 2019, a decision was taken to revoke OMA’s refugee status and on 15 August 2018 a decision was taken to refuse his protection and human rights claim. This was served on OMA on 15 September 2018 along with a Deportation Order and reasons for deportation.
The decision of the First-tier Tribunal
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OMA gave oral evidence and was supported by an intermediary as a result of his vulnerability and poor cognitive skills. His ex-partner also gave oral evidence and both representatives made submissions.
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The judge found that s72 Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) does not apply to OMA because he had rebutted the presumption that he constitutes a danger to the community to the UK.
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The judge then considered the issue of cessation. The judge took into account evidence which post-dated MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442, including evidence from the UNHCR as to the treatment of minority clans in Somalia. The judge then departed from the Country Guidance in MOJ finding that that the Secretary of State had not proved that changes in Somalia were non-temporary or durable. The judge found at [15] that OMA is at risk in Somalia because of his membership of a minority clan. The judge also made some findings as to the situation that OMA would find himself in Somalia relying on the expert country and medical evidence before him.
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The judge went onto consider Article 8 ECHR. The judge found that both Exceptions at s117C of the 2002 Act applied to OMA. In particular, the judge noted at [19] that the Secretary of State’s representative made a concession that it would be “unduly harsh” for OMA’s children to remain in the UK without their father.
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Finally, the judge found that it would be a breach of Article 3 ECHR on medical grounds for the appellant to be returned to Somalia.
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The judge allowed the appeal on all grounds.
Preliminary matters
“Unduly harsh” concession
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At the outset of the hearing, there was a discussion between the representatives about the “unduly harsh” concession referred to by the judge at [15]. Prior to the hearing, I had directed both parties to provide their notes of proceedings before the First-tier Tribunal. Both parties provided their notes. Mr Clarke for the Secretary of State submitted that no such concession had been made. He drew my attention to the note from the Presenting Officer where it was recorded that in closing submissions she argued that it would not be “unduly harsh” for OMA to be deported and for the children to remain. There was no note of a concession. Ms McCarthy also provided her detailed note of the proceedings in which she had represented the appellant. In her record there was no explicit note that the Secretary of State had made a concession that it would be “unduly harsh” for the children to remain in the UK without their father. Ms McCarthy stated that her recollection was that the Presenting Officer had been sympathetic to the situation of the second child whose behaviour had deteriorated whilst OMA was in prison, nevertheless she indicated that she would not submit that a concession had been made when a Presenting Officer had indicated that one had not been made.
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From a consideration of both parties’ notes of the proceedings and from both parties’ notes of the submissions which addressed the issue of “unduly harsh”, I am satisfied that no such concession was made. Importantly, neither representative recorded clearly on their note of the hearing that a concession had been made and I find it highly unlikely that this would not have been recorded if this were not the case. Ms McCarthy indicated that she would alternatively argue that the Article 8 ECHR findings were adequately reasoned.
Rule 15 application to adduce an up-to-date PNC report.
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Mr Clarke sought permission to adduce a document which comprised of an updated PNC report which was not before the Tribunal at the date of the hearing. This demonstrated that prior to the date of the hearing and less than 6 months after his release from prison on 13 June 2021, OMA had committed a further offence of burglary and theft on a non-dwelling for which he was sentenced on 18 November 2021 at Buckingham Magistrates Court to a community order and drug rehabilitation requirement. He was also ordered to pay compensation of £100 and a victim surcharge of £95.00. This sentence was subsequently varied shortly after the hearing on 6 April 2022 to 12 weeks imprisonment for breach. On 18 November 2021, also prior to the hearing, he was also sentenced to a £40 fine for failing to surrender to custody on 30 September 2021.
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During the hearing I indicated that I would admit this evidence, however having given this matter further consideration and having reviewed the relevant authorities, I have ultimately decided not to admit this evidence in support of the error of law hearing for the reasons set out below.
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Mr Clarke referred me to the principles in Ladd v Marshall [1954] EWCA Civ 1. His submission was that the document was not provided because of the proximity of the offence and conviction to the date of the hearing. He argued that the evidence was probative because it would have had an impact on the judge’s view of whether OMA constituted a danger to the community and various other aspects of his appeal. He further submitted that the parties have a duty to the court to be candid and OMA should have been expected to reveal to the Tribunal that he had another conviction.
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Ms McCarthy’s submission was firstly that the evidence could have been obtained with reasonable diligence because there had been several case management hearings prior to the court hearing and secondly that the new conviction was not probative. The judge had found that OMA was not a danger to the community on the basis of more serious offending and the new offence resulted in a community order and drug order only. Further, because of OMA’s vulnerability and lack of cognitive skills his failure to reveal this conviction did not taint the remainder of his evidence. She acknowledged that her note of proceedings demonstrated that OMA was asked in cross examination whether he had been stopped or arrested at all since he had been released from prison and he had responded by stating that he had been stopped but not arrested.
When considering whether to admit this evidence, I firstly had regard to the Ladd and Marshall test in accordance with the principles in Akter (appellate jurisdiction; E and R...
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