Upper Tribunal (Immigration and asylum chamber), 2019-04-11, RP/00150/2016

JurisdictionUK Non-devolved
Date11 April 2019
Published date05 June 2019
Hearing Date19 March 2019
CourtUpper Tribunal (Immigration and Asylum Chamber)
StatusUnreported
Appeal NumberRP/00150/2016

Appeal Number: RP/00150/2016


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: RP/00150/2016



THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 19 March 2019

On 11 April 2019




Before


LORD UIST

(SITTING AS AN UPPER TRIBUNAL JUDGE)

UPPER TRIBUNAL JUDGE CANAVAN



Between


A A

(ANONYMITY DIRECTION MADE)

Appellant/Respondent

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent/Appellant



Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008


Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. We make clear that anonymity was not granted to protect the appellant’s reputation following his conviction for criminal offences. However, it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent.



Representation:

For the appellant/respondent: Mr D. Sellwood instructed by Wilson Solicitors

For the respondent/appellant: Mr C. Avery, Senior Home Office Presenting Officer



DECISION AND REASONS

1. Both parties have been granted permission to appeal to the Upper Tribunal. For the sake of clarity, we will continue to refer to them as they were before the First-tier Tribunal.

2. The appellant (Mr A) appealed the Secretary of State’s decision dated 22 June 2017 to revoke refugee status with reference to Article 1C(5) of the Refugee Convention (cessation), to certify the protection claim with reference to section 72 of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”) (refoulement) and to refuse a human rights claim in the context of deportation proceedings.

3. First-tier Tribunal Judge Callow (“the judge”) dismissed the appeal on Refugee Convention grounds. He began by considering the certificate made under section 72 NIAA 2002 and noted that the provision was intended to reflect Article 33(2) of the Refugee Convention. He outlined the relevant legal principles [16-21] and considered whether the appellant had rebutted the presumption that he was a danger to the community with reference to the evidence [22]. He concluded that the appellant failed to rebut the presumption and that section 72 applied [23] in the following terms:

22. In his submissions Mr Sellwood accepted that the appellant had been convicted of a serious crime, but whether it was particularly serious in all the circumstances was another matter. My analysis of all the facts is that the presumption has not been rebutted by the evidence in this appeal. The circumstances of the robbery resulting in the sentence of four years was outlined in the sentencing remarks forming part of the respondent’s bundle. The appellant was found, with three others, to have hit the victim during which comparatively trivial items were stolen. The victim was not seriously injured. Notwithstanding these facts, given the maximum penalty of five years that could have been imposed, I believe that the appellant has been convicted of a particularly serious crime. The OASys assessment identified the appellant as posing a low-risk of serious harm in the community in respect of children, known adults and staff, and a medium risk to the public. In her clinical psychology report Dr Boucher, at the request of the appellant’s solicitors, reported that the appellant presented with symptoms of anxiety and depression and difficulties with PTSD wherein he would benefit from individual weekly psychotherapy. Given negative thoughts about being deported to Somalia, including the belief that it would be the end of his life, it was envisaged that he would experience a deterioration in his psychological well-being and mental health. As to the risk of re-offending, it was the doctor’s opinion that the appellant was at the time of her report at a moderate to high risk of future violence and of general non-violent re-offending in the future. Previous violent offences included the use of instruments (bottle, sand bags), sustained violent attacks and acts of violence where there were a group of perpetrators. Any future violence had the potential to inflict significant psychological and physical injuries. His previous victims had included members of the general public that he did not know and therefore future risk scenarios would include a risk of violence to the general public. So far as ‘danger to the community’ is concerned, it has been established that the danger is real and there is a real risk of repetition.

23. In all the circumstances s.72(1) of the Act applies. The consequence is that the appellant is excluded from protection on the basis that Article 33(2) recited above applies to him. As a result, the Convention does not prevent his removal from the UK.”

4. Still under the heading of “Section 72 consideration”, the judge went on:

24. However, it remains to determine whether the revocation of protection status breached obligations either under the Convention or based on an entitlement to humanitarian protection and whether removal would breach obligations under Articles 3 and 8 of the ECHR.

25. After lengthy consideration I am of the opinion that the appellant has given truthful evidence. In broad terms his immigration history and background have been established on a balance of probabilities. It has been established that the appellant has been living in the UK for over 23 Years since his arrival at the age of seven. Prompted by his own unacceptable and criminal conduct, his education ended abruptly at 14. Since then a life of crime has dominated his lifestyle. Save for one-time random help to his mother and a cousin, he has never had full-time employment and has no basic qualifications to apply for any particular job. As to Mogadishu, this is indeed a foreign city to him. He has no nuclear or extended family there. Given his lack of knowledge of clan life in Somalia, any prospect of engaging with his clan was very limited in his circumstances. He simply does not have the profile and resources to access opportunities produced from the economic boom in Mogadishu. Even if he were to receive some limited financial support from family in the UK, his relocation in Mogadishu with no real formal links to the city given that he left there 23 years ago at the age of seven, there would be a real risk of no alternative in makeshift accommodation within an IDP camp.”

5. The judge then concluded that the appellant was excluded from Humanitarian Protection for the same reasons given relating to section 72 [26]. He then went on to consider whether the appellant’s removal would breach his rights under Article 3 of the European Convention. Under the heading “Article 3” he considered general case law relating to the application of Article 3 [27-28]. He quoted the findings of the Upper Tribunal in MOJ & Others (Somalia) CG [2014] UKUT 00442 earlier in the decision [8] and returned to it when he considered whether the appellant would face a real risk of Article 3 ill-treatment if returned. At [28(b)] and [29] his findings on Article 3 were as follows:

28 …

(b) The country guidance in MOJ was limited to the issues of whether those returning or relocating to Mogadishu could succeed in claims for refugee status, humanitarian protection or protection against refoulement under Articles 2 or 3 of the ECHR, solely on the basis that they were civilians without adequate protection. The present appellant was excluded from protection or humanitarian protection and the refugee convention because of his serious offending. He could only rely on his Convention rights. Paras 407(h) and 408 of MOJ were concerned with the ability of a returning Somali to support himself. While they might have some relevance in considering whether a removal to Somalia would violate Article 3, they could not be a surrogate for an examination of the circumstances to determine whether such a breach would occur. If a Somali national brought himself within the rubric of para 408 of MOJ it did not follow that he had established that removal to Somalia would breach Article 3. Such an approach would be inconsistence (sic) with jurisprudence. The position was accurately stated at para 422 of MOJ, which drew a proper distinction between humanitarian protection and Article 3 and recognised that the individual circumstances of the person concerned must be considered. An appeal to Article 3 which suggested that the person concerned would face poverty on removal should be viewed by reference to the test in N. Impoverished conditions which were the direct result of violent activities might be viewed differently.

29. On the sensitive facts in this appeal the appellant faces the real risk in the absence of prospects of employment, clan support and the availability of remittances of any value that he would not be able to establish himself in Mogadishu.”

6. The judge allowed the appeal under Article 3. He made no findings relating to Article 8 of the European Convention.

7. The appellant appeals the First-tier Tribunal decision on the following grounds:

  1. The judge erred in considering the maximum sentence for the offence and not...

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