[Printable RTF version]
||Neutral Citation Number:  EWCA Civ 1853
||Case No: C5/2015/3737
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Upper Tribunal (Immigration & Asylum Chamber)
DA/00343/2014,  UKAITUR DA003432014
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RUPERT JACKSON
LORD JUSTICE LINDBLOM
LADY JUSTICE THIRLWALL
|| SECRETARY OF STATE FOR THE HOME DEPARTMENT
||- and -
Mr Shakil Najib (instructed by GLD) for the Appellant
Mr Ronan Toal (instructed by Wilson Solicitors LLP) for the Respondent
Hearing date: 10th October 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
LADY JUSTICE THIRLWALL :
- FY is a national of Somalia (DOB 26.6.85). In 2014 the Secretary of State for the Home Department (SSHD) took steps to deport him. He successfully appealed against his deportation to the First-tier Tribunal (FtT). The judge concluded that were he deported there would be a real risk of a breach of his rights under article 3 of the European Convention on Human Rights because of the conditions in which he would be living. The SSHD appealed to the Upper Tribunal. Her appeal was dismissed. By this appeal she seeks to set aside the decision of the Upper Tribunal promulgated on 29 July 2015 and, it follows, the decision of the FtT. I refer to the respondent and appellant as FY and SSHD respectively.
- FY left Somalia at the age of 9. He entered the United Kingdom on 2 August 2002 by which date he was 17. He claimed asylum which was refused but he was granted leave to remain until 25 June 2003, the day before his 18th birthday. His subsequent applications to extend his leave were refused as were his appeals. His rights of appeal were exhausted as at 25 July 2007. He was detained on 14 November 2007. Removal directions were set for 12 December 2007. Removal did not take place because on 11 December 2007 the Home Office received notification that the European Court of Human Rights had imposed interim measures pursuant to Rule 39 of the Rules of the European Court of Human Rights prohibiting deportation to Somalia in light of the armed conflict there.
- FY remained in the UK. On 16 April 2010 he made further representations to the SSHD based on articles 3 and 8 of the ECHR. These were refused with no right of appeal on 8 April 2011. On 14 June 2012 the rule 39 measures for Somalia were lifted, conditions in the country having improved.
FY's criminal history
- On 5 June 2007 FY was cautioned for shoplifting. On 3 July 2007 he was cautioned for theft. On 12 February 2013 after a trial at the Crown Court in Leeds he was convicted of affray and sentenced to 12 weeks' imprisonment. He was also convicted of assault occasioning actual bodily harm and common assault. The sentences for those offences were in total 20 weeks' imprisonment and 22 weeks respectively. All three terms of imprisonment were to run consecutively. A restraining order was made against FY.
- On 7 June 2013 FY was again cautioned for shoplifting. On 22 August 2013 he was convicted at Leeds Magistrates' Court of burglary. He was also found to have breached the restraining order. His case was committed to the Crown Court where he was sentenced to 10 months' imprisonment in respect of the burglary and a further two months for breach of the restraining order.
The procedural history
- On 20 January 2014 a liability to deportation letter was sent pursuant to s3(5)(a) of the Immigration Act 1971 on the grounds that the SSHD deemed his removal to be conducive to the public good. On 13 February 2014 FY's representations to the SSHD about the decision were rejected. Officials concluded that deportation would not be a breach of FY's rights. On 27 March 2015 FY's appeal to the FtT was successful. On 29 July 2015 the SSHD's appeal was dismissed. Permission to appeal to this court was granted on 10 March 2016.
The SSHD's case
- In the letter of 13 February 2014 the SSHD's officials set out the basis of FY's liability to deportation – that his presence was not conducive to the public good in the light of his criminal convictions. They considered that there was no interference with FY's article 8 rights but in any event such interference would be proportionate. There is no need to say any more about this because the FtT judge dismissed the ground of appeal against this finding and FY did not appeal that decision. As to article 3, the SSHD relied upon an earlier finding of the (then) Asylum and Immigration Tribunal when FY appealed in respect of his asylum claim, that he was not a member of a minority clan and so he would not face persecution or inhuman or degrading treatment. The SSHD also relied on the significant changes in conditions in Mogadishu since the decision of the Upper Tribunal in the Country Guidance decision in AMM and others  UKUT 00445.
- The focus of this appeal is on the reasoning of the FtT judge which was upheld in a brief judgment by the judge of the Upper Tribunal.
- Before turning to the submissions of the SSHD, I record her important acknowledgment that for the purposes of this appeal it is accepted that were FY to have to live in an IDP (Internally Displaced Persons') camp in Somalia there would be a real risk of a breach of his rights under article 3. This concession was inevitable in the light of the Country Guidance in MOJ and others (Return to Mogadishu) Somalia CG  UKUT 00442 (IAC) and the evidence in this case.
- The FtT judge concluded that it was likely that were he to be deported to Somalia, FY would have to live in an IDP camp because (in summary):-
a. he has no family in Somalia
b. he is unlikely to receive support from a clan there
c. he is unlikely to find work and
d. he has no real prospect of receiving money from relatives in the UK.
Mr Najib (who did not appear below) submits that the FtT judge's conclusion was not open to her because her findings (at b and c above) in respect of the likelihood of support and the likelihood of finding work were inconsistent with the Country Guidance in MOJ and others (Return to Mogadishu) Somalia CG  UKUT 0042 (MOJ). No complaint is made about the findings summarised at a and d above.
- On behalf of FY, Mr Toal submits that both findings were consistent with the Country Guidance and there was no error of law. The appeal is in reality against findings of fact with which the SSHD does not agree.
- As well as relying on the general Country Guidance Mr Najib developed his submissions by detailed reference to the individual cases heard within the umbrella of MOJ. That latter exercise was unhelpful; each of the cases upon which he relied had some similar features to this case but all were distinguishable. They were of no assistance on the issue to be decided in this case and I say no more about them.
The Country Guidance
- The essence of the relevant country guidance is to be found at paragraph 407 at sub paragraphs (f)-(h) and at paragraph 408.
(f) 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.
(g) The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assistance 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.
(h) 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.
408. 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."
- Mr Najib submits that having set out the guidance the FtT judge failed to apply it. He began with the written submission that having determined that FY was a member of a majority clan the FtT judge was "precluded from finding (and therefore erred in finding) that the Respondent would not be able to access help and support from his clan upon return to Mogadishu merely by reason of his lengthy absence from the same, such an argument having been rejected in ...MOJ".
- What the FtT judge found, as part of her overall consideration of the circumstances is set out at paragraph 44
"I have not accepted that he has established he is from a minority clan. However I accept that his length of absence and lack of family ties will make it difficult for him to access help from his clan in Mogadishu and that family ties are now more important than clan ties."
Mr Najib accepted, on reflection that nothing in the Country Guidance precluded those findings.
- Mr Najib next submitted that in coming to her finding in respect of the lack of support from his clan, the FtT judge placed "manifestly excessive weight on the expert evidence of Mary Harper to the effect that an individual returning to Mogadishu after a long period of absence could not expect any support from his clan, in circumstances where the Upper Tribunal in MOJ and others…specifically rejected Ms Harper's evidence on the very same point on the basis that it was purely hypothetical and that Ms Harper was "speaking of what she thought was likely to happen rather than what she knew to have occurred." This submission was based on a misunderstanding of a passage in MOJ which was dealing with protection. When dealing with the issue of clan support more generally the Upper Tribunal in MOJ accepted Ms Harper's evidence. At paragraph 342:
"…for a returnee to Mogadishu today, clan membership is not a potential risk factor but something which is relevant to the extent to which he will be able to receive assistance in re-establishing himself on return, especially if he has no close relatives to turn to upon arrival. There remains an aspect of protection to be derived from clan membership, which we discuss in more detail below when considering issues of sufficiency of protection. But this is more to do with having access to a support network providing the opportunity to put in hand security measures when needed rather than a situation of being able to look to an existing clan militia to provide protection. But this source of assistance must not be overstated. As explained by Ms Harper, in her oral evidence, in response to a question concerning what help a returnee might expect from his clan:
"None at present. If you arrive in Mogadishu and do not know anyone at all, you might start asking for fellow clan members in the hope that they might do more for you than others. But you could not expect anything from them.
We understand that to mean that while there was no guarantee that help would be available from clan members outside the close family network of a returnee, at least there is more likelihood of such a request being accommodated than if made to those unconnected by the bond of clan membership. That is, perhaps, wholly unsurprising. However, it should be noted that in the UNHCR January 2014 report the view was expressed that a returnee might be rather more confident of receiving help from his clan, if not a minority clan member…".
- Ms Harper, BBC Africa Editor and Somalia Expert, had been to Somalia most recently in March 2015. At paragraph 6.4 of her report for FY she recorded the observations of other experts and NGO workers that the principal social mechanism in Somalia now is the family, rather than the clan. This is consistent with the findings in MOJ. The FtT judge dealt with the issue thus (see paragraphs 42 and 43):
"42 The appellant would be returning to Somalia as an ordinary civilian. He is not and nor does he claim to be associated with the security forces, government, any NGO. He will not be at real risk simply on account of having lived in a European location for a period of time.
43. However I accept that he has no nuclear family or close relatives in the city to assist him in re-establishing himself on return. Therefore it is necessary to carefully assess his circumstances. Here it is relevant to take into account that he last lived in Somalia at the age of 9, about 21 years ago and will have virtually no memory of or familiarity with the place. His length of absence from Mogadishu is extensive and he has no family associations to call upon in Mogadishu."
- There is no error of approach here either. It is consistent with the Country Guidance.
- The next ground of appeal is that the judge erred in finding that FY would not be able to obtain employment on return to Somalia by reason of his criminal convictions in the UK. Again this is to take one aspect only of the judge's reasoning. At paragraph 46 she said:
"The appellant has little prospect of securing livelihood on return to Mogadishu. He has little in the way of training or work experience. He has clearly done some work in the UK, but only in a causal and haphazard way. He is also very unfamiliar with Somalia and has no family support there to help him secure a livelihood. He also has a criminal record and has a history of mental health/alcohol problems".
- The conclusion expressed in the first line was based on the findings which follow, all of which were based on the evidence the FtT judge had set out earlier in her determination. The criminal record was a simple fact. It is uncontroversial to observe that having a criminal record does not make it easier to get work. I do not consider that the judge was saying any more than that. It is a negative factor. She was not required to determine whether FY could or would effectively conceal his criminal record, as Mr Najib submits. CG, one of the cases considered with MOJ was decided on different facts and in any event did not form part of the country guidance.
- Further complaint is made about the fact that the FtT judge did not explain why FY could not take advantage of the economic boom. I do not find this easy to follow; the judge gave her reasons for considering that he would not find it easy to obtain employment. The reasons were given in the context of the economic boom referred to in the country guidance. Nowhere is it suggested that all returnees find some sort of work, irrespective of their suitability.
- The FtT judge therefore concluded that the result of her findings was that there was "a real possibility that he will face the prospect of living in circumstances falling below that which is acceptable in humanitarian terms. There will be a real risk of him having no alternative but to live in makeshift accommodation which may or may not be within an IDP camp, and there is a real possibility of him having to live in conditions that will fall below acceptable humanitarian standards and which would amount to a breach of Article 3" - see paragraph 48 of the determination.
- There was no error of law in the judgment. The conclusion the judge came to was open to her on the facts as she had found them to be.
- I agree with Mr Toal's principal submission that properly analysed this appeal is a straightforward attack upon findings of fact which led to a conclusion with which the SSHD does not agree. As has been said repeatedly in this court and elsewhere, more usually when the appeal is by the individual to be deported, the courts will not interfere with findings of fact made by a specialist tribunal unless the findings are perverse. The findings here were not perverse. Looking at the case on the papers I think it likely that I would not have made the same finding in respect of FY's ability to obtain work as the FtT judge made and that may well have led me to a different conclusion but I am looking at the case on the papers only. The FtT judge had the advantage of seeing and assessing FY, an important advantage that should not be underestimated. The judgment of Lady Hale in AH (Sudan) v Secretary of State for the Home Department  UKHL 49,  AC 678 emphasises this issue at paragraph 31:
"…This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security EWCA Civ 734,  3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh [I interpolate or generous] to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."
- I would dismiss this appeal.
- Lord Justice Lindblom I agree
- Lord Justice Jackson I also agree
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