Upper Tribunal (Immigration and asylum chamber), 2019-03-04, RP/00114/2016
| Jurisdiction | UK Non-devolved |
| Date | 04 March 2019 |
| Published date | 12 April 2019 |
| Hearing Date | 03 December 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | RP/00114/2016 |
Appeal Number: RP/00114/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00114/2016
THE IMMIGRATION ACTS
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Heard at: Field House |
Decision & Reasons Promulgated |
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On 30 October 2017, 3 October and 3 December 2018 |
On 4 March 2019 |
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Before
UPPER TRIBUNAL JUDGE O’CONNOR
Between
MM
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms K McCarthy, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr T Lindsay & Mr I Jarvis, Senior Presenting Officers
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant herein is granted anonymity. No report of these proceedings shall directly or indirectly identify the appellant or any member of the appellant’s family. Failure to comply with this direction could lead to contempt of court proceedings.
DECISION AND REASONS
Introduction
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The appellant is a national of Somalia, born in July 1988. He entered the United Kingdom on 15 December 1995 and on 7 January 1998 was granted indefinite leave to remain as a refugee (as a dependent on his aunt who had previously been granted indefinite leave to remain as a refugee in March 1995).
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On 3 December 2008, the appellant was convicted for conspiracy to inflict grievous bodily harm and sentenced to a total of seven years’ imprisonment. He was sentenced to a further twelve months’ imprisonment on 30 August 2013 for possession of an offensive weapon, and fourteen months imprisonment on 25 October 2013 for affray.
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Having informed the appellant of his intention to revoke his refugee status by way of a letter dated 18 November 2015 (served in January 2016), the respondent took such action on 5 July 2016. Thereafter, in a decision dated 18 August 2016 but served under cover of a letter of 22 August, the respondent refused the appellant’s protection and human rights claims, which triggered a right of appeal to the First-tier Tribunal (“FtT”). On the following day a deportation order was signed in the appellant’s name.
Decision of the FtT
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The appellant’s appeal was heard by First-tier Tribunal Judge Amin on 16 January 2017 and dismissed on all grounds in a decision sent to the parties on 24 February 2017.
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Before the FtT the appellant relied upon personal characteristics which it was said, taken either cumulatively or in isolation, would lead to his removal breaching Article 3 and Article 8 ECHR. These included, the length of time since he was last in Somalia, his inability to speak the Somali language with any fluency or at all, his lack of family and clan connections in Somalia, and the unwillingness and inability of his UK based relatives to financially support him in Somalia.
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The FtT, inter alia, found as follows:
“68. I accept that the appellant left Somalia when he was 7 or 8 years old and he has not returned. He has been absent from Somalia for twenty years. His entire family is in the UK and he has no clan connections in Somalia. The appellant suffers from dyslexia but he has not provided any evidence to show what assistance he requires with this disability. On the contrary, the expert report states that he is above normal intelligence (as an underestimate). I do not find that his dyslexia will prevent him from securing a livelihood in Mogadishu.
69. I also reject the family’s evidence today that they would not be able to support him financially on return to Mogadishu because they fear the money would go to terrorists. This is speculation on the part of the family. The appellant has family members who are running businesses in the UK and there is no reason put forward why they would not be able to support him on return. The appellant initially spoke the language of the country and it may take him time but he will be able to learn the language despite his dyslexia. The appellant has trained in prison to be a motor mechanic and he will be able to utilise such skills to obtain a job.
70. In the alternative, the appellant can also relocate to Somaliland contrary to his Counsel’s submissions. The appellant’s own expert has stated that it is feasible for him to relocate so long as he has family support. I have concluded that it is reasonable to expect his large extended family to support him on return in Mogadishu or Somaliland.
71. In coming to my conclusions on the revocation of the appellant’s refugee status I have taken into account the appellant’s solicitor’s submissions and the UNHCR letter dated 8 April 2016. However, having carried out a full assessment of the appellant’s situation, I consider that the improvements in Somalia (relying on MOJ) since the appellant was recognised as a refugee are fundamental and durable within the meaning of Article 1C(5) of the 1951 Convention.
72. I have already noted above that in the light of the appellant’s convictions his deportation order stands. Criminality does not amount to a change of personal circumstances under paragraphs 339A(i)–(iv) or a review may highlight that protection is no longer needed. The appellant’s own background information EASO country report notes that the number of incidents in Mogadishu – especially bomb attacks – is decreasing, albeit still high. UNHCR in Somalia also noted in May 2015 that Al-Shabab wants headlines and therefore carries out spectacular attacks against high profile targets. Therefore they do not target ordinary civilian citizens like the appellant. MOJ noted the reduction in casualties amongst civilians since 2011.
73. MOJ also recognised that there are no clan militias in Mogadishu, no clan violence and no clan based discriminatory treatment, even for minority clan members. It also recognised that there will be no risk of harm such as to require protection under Article 8 of the ECHR or Article 15(c) of the Qualification Directive for an ordinary civilian, like the appellant, in Mogadishu. These are clear and fundamental changes as to why the appellant was granted refugee status previously.”
Permission to appeal to the Upper Tribunal
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Upper Tribunal Judge Canavan granted permission to appeal to the Upper Tribunal in a decision of 11 September 2017, for the following reasons:
“2. The grounds of appeal are not well focused and in places concentrate on matters that are likely to be immaterial issues (such as the exceptions to deportation, which do not form a significant aspect of the assessment in light of the sentence of more than four years’ imprisonment). Although many of the judge’s findings were unarguably open to her to make, and there is some question mark as to whether some of the matters highlighted in the grounds would have made any material difference to the outcome of the appeal, it is at least arguable that the judge might not have given adequate consideration to some aspects of the evidence that supported the appellant’s position, including aspects of the expert report and the evidence given by some of the witnesses. The grounds do at least justify further consideration at a hearing.”
Setting aside the FtT’s decision
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At a hearing of 30 October 2017, I set aside the FtT’s decision. A written decision in the following terms was sent to the parties on 14 November 2017.
“[9] It is first necessary to set the challenges to the First-tier Tribunal’s decision in the context of the most recent Country Guidance decision relating to Somalia i.e. MOJ & Others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC), the headnote to which reads:
“(i) …
(ii) Generally, a person who is “an ordinary civilian” (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 3 of the ECHR or Article 15(c) of the Qualification Directive. In particular, he will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country.
(iii) There has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city. That was not the case at the time of the country guidance given by the Tribunal in AMM.
(iv) The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered as a whole that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab’s resort to asymmetrical warfare on...
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