United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-005154

First-tier Tribunal No: PA/55744/2023

 

THE IMMIGRATION ACTS

 

Decision & Reasons Issued:

 

On 18 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE BULPITT

DEPUTY UPPER TRIBUNAL JUDGE RIPLEY

 

Between

 

M M

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Terrell, Senior Presenting Officer

For the Respondent: Mr Nadeem for Fountain Solicitors ,

 

 

Heard at Field House on 28 January 2025

 

ANONYMITY ORDER

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 ('the Rules'), the appellant 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.

 

Failure to comply with this Order could amount to a contempt of court.

 

 

DECISION AND REASONS

 

Introduction

1.       This is an appeal against a decision of First-tier Tribunal Judge Mulready ("the Judge") dismissing the appellant's appeal by a decision dated 5 July 2024.

 

Anonymity Order

2.       The Judge issued an anonymity order. Neither representative requested that the order be set aside. As the appellant currently seeks international protection, we consider that at the present time his private life rights, protected by Article 8 ECHR, outweigh the public right to be informed that he is a party to these proceedings. The latter right is protected by Article 10 ECHR. In the circumstances, we consider it appropriate that the anonymity order continue.

 

3.       The anonymity order is detailed above.

 

Background

4.       The appellant is a Somali national and initially arrived in the UK as a child dependent of his mother, an asylum seeker. The family were subsequently granted indefinite leave to remain. In 2003 the appellant fled the UK having committed murder. He was extradited from Canada in 2010, convicted of murder in 2011 and sentenced to life imprisonment, with a minimum term of ten and half years.

 

5.       In January 2020 he was served with notice of the respondent's intention to make a Deportation Order and in response made protection and human rights claims to remain in the United Kingdom. The respondent certified the appellant as excluded from refugee protection under s 72 of the Nationality and Borders Act 2002 (the 2002 Act). In August 2021 the appellant withdrew his claims and on 16 August 2021 a deportation order was issued. The appellant was granted parole the same month and moved into immigration detention pending his removal to Somalia.

 

6.       In October 2021 he renewed his protection and human rights claims to remain in the United Kingdom and he was granted immigration bail while those claims were considered. On 14 August 2023 the respondent issued a decision refusing the appellant's protection and human rights claims and maintaining the deportation order that had been issued. The appellant appealed against that decision and that appeal is the subject of the First-Tier Tribunal decision the appellant is seeking to challenge in this appeal to the Upper Tribunal.

 

The Judge's decision

7.       The Judge heard the appellant's appeal on 24 June 2024 and issued a decision dismissing it on 5 July 2024. The Judge began her deliberations by considering section 72 of the 2002 Act and found that the appellant had not rebutted the presumption that he constitutes a danger to the community of the United Kingdom concluding that he was therefore excluded from refugee protection. The Judge then considered whether return to Somalia would breach the appellant's rights under Articles 2 and 3 of the ECHR and found that it would not, concluding that in an attempt to thwart deportation the appellant had fabricated claims that he was at risk of violence and murder in Somalia from the family of his murder victim and from his wife's family. The Judge finally considered the appellant's claim that deportation would breach his rights under Article 8 of the ECHR and found that it would not, concluding that there were no very compelling circumstances to outweigh the very strong public interest in the appellant's deportation

 

Grounds of Appeal and grant of permission

8.       The appellant was refused permission to appeal against the Judge's decision by another First-tier Tribunal Judge. The renewed application for permission to appeal made to the Upper Tribunal included four pages of grounds. In effect these grounds comprise three different arguments under the heading- inadequate/irrational reasoning:

(i)                  The Judge appeared to find that the appellant had intended to kill, and this was contrary to the findings made in the sentencing Judge's comments and adversely affected her assessment of whether the appellant is a danger to the community.

(ii)               The Judge appeared to have concluded that the appellant remained a risk to the community on the basis of his conviction for murder and failed to provide reasons for why that conviction alone, outweighed his low risk of reoffending and other factors post his conviction.

(iii)             There was a lack of evidence before the Judge to support the finding that the appellant had a relationship with relatives in Somalia or that those were his relatives, rather than his brother-in-law's relatives.

 

9.       In a decision dated 28 November 2024 permission was granted by Upper Tribunal Judge Ruddick on all those grounds.

 

10.   The paragraph numbering in the grounds jumped from paragraph 17 to paragraph 37. The day before this hearing the Tribunal identified that the original grounds of appeal submitted to the First-tier Tribunal included paragraphs 18 - 36 in three further pages. A copy of these full grounds were sent to the respondent. On the day of the hearing we put this matter to the back of the list to provide Mr Terrell with further time to consider those full grounds. At the commencement of the hearing, it became apparent that Mr Nadeem remained unaware that there were three pages missing from the grounds filed in the Upper Tribunal application. The hearing was again put back to enable Mr Nadeem to take instructions and consider the missing pages of grounds.

 

11.   At the resumed hearing Mr Nadeem was invited to make an application to amend the grounds. He apologised for the administrative error but also argued that he was primarily intending to rely on ground (i) as set out above.

 

12.   Mr Terrell opposed the application on the basis that the missing pages of the grounds should have been identified when the composite bundle was submitted. Further, in his view, the additional grounds did not identify any error.

 

13.   We were satisfied, with regard to Rule 2 of the Rules, and considering that the failure to provide a full copy of the grounds was an administrative error, that notwithstanding the abject failure to apply appropriate care and attention to the preparation of papers for the hearing we should accept the amendment to the grounds as it would be fair and just to do so, despite the lack of a formal written application under under paragraph 21(3) of the Upper Tribunal rules 2008.

 

14.   The following arguments were made in the additional grounds:

 

(iv)             The Judge had misread the country background relied on, in finding that the appellant needed to be in the same clan as the victim in order to fall foul of the Diya practice

(v)               The Judge had failed to have regard to relevant evidence in finding that the appellant was not from the same clan as the victim he had killed.

(vi)             The Judge erred in finding that the appellant was not at risk because he was not from the same clan as the victim, including as a consequence of the Diya practise, and also not at risk from his wife's family.

(vii)           The Judge had failed to have regard to the factors that supported the appellant in the Article 8 assessment.

 

Submissions

15.   Mr Nadeem's submissions focused on a challenge to the s72 certificate and the Judge's finding that the appellant failed to rebut the presumption that he was a danger to the community. He argued that the Judge failed to note that the Crown Prosecution Service (CPS) accepted that the appellant had no intention to kill. He further relied on EN (Serbia) v Secretary of State for the Home Department [2009] EWCA civ 630 to challenge the Judge's finding that the presumption had not been rebutted and argued that the evidence demonstrated a lack of ongoing risk to the community, the appellant had displayed exemplary behaviour in prison, had been released on parole and had not re-offended.

 

16.   In relation to the risk the appellant claims to face on return to Somalia, Mr Nadeem further argued that the commencement of [42] of the decision indicated that the Judge had required the appellant to provide evidence to corroborate his claim to be from the same clan as the family of the victim and that the Judge had applied the wrong standard of proof.

 

17.   Mr Terrell argued that at [19] of the decision the Judge has specifically set out the comment of the sentencing Judge in which it was stated that: " as is properly considered by the prosecution, an intention to kill had not been proved ". T he Judge was not making a contrary finding at [25]. He was repeating a comment in a recent OASys report in which it was stated that, the appellant " denies intentionally hitting the victim... and states that it was completely accidental, with the intended victims being those that were threatening him " . As a consequence, in that paragraph, the Judge finds that the appellant is remorseful about having killed the wrong person. The Judge has not found that the appellant had an intention to kill, contrary to the concession of the CPS.

 

18.   Mr Terrell submitted that the Judge had gone on to set out reasons for finding that the appellant had not rebutted the presumption. The Judge was entitled to weigh the remoteness of the risk of the appellant reoffending against the possible serious consequences should he reoffend, as evidenced by his one very serious previous conviction. The Judge had set out the positive steps that the appellant had taken and had weighed these against the risk and reached a conclusion that was open to her.

 

19.   Mr Terrell pointed out that Mr Nadeem was raising a new ground when arguing that the Judge had used the wrong standard of proof at [42] of the decision, but said that it was a ground without any substance. With regard to the issue of risk on return and the Judge's findings about clan and the Diya practice, the appellant argued in his statements and his representatives' letter to the Home Office that his being from the same clan as the victim exacerbated the risk on return due, in part, to the Diya practice. The country background evidence relied on by the appellant was not clear. The appellant had argued that his own clan would not protect him because they had taken the victim's side, the victim being from the same clan. This argument was clearly advanced in the skeleton. The Judge had provided reasons for attaching little weight to the evidence that they were from the same clan. Finally, even if the Judge had made an error regarding the country background, this was not a material error.

 

20.   Mr Terrell submitted that the appellant's grounds in respect of Article 8 were a disagreement with the facts found. The Judge had given reasons for those findings. Head note 5 of OA (Somalia) CG [2022] UKUT 33 (IAC) supported the Judge's finding that the appellant would have relatives in Somalia.

 

21.   In reply Mr Nadeem maintained that the Judge had failed to adequately reason the finding that the appellant remained a danger to the community and had overlooked relevant facts including developments since the crime occurred and the substantial supporting evidence before the First Tier.

 

Discussion

Grounds concerning the s7(2) presumption

22.     The appellant was granted permission to appeal primarily on ground (i). The wording of the grant of permission states: " It is just arguable that at [25] the Judge has overlooked crucial evidence regarding the appellant's lack of intention to kill at the time of his 2003 offence, as conceded by the CPS and found by the sentencing Judge ...". This was the primary ground advanced by Mr Nadeem.

 

23.     In the grounds, there is no reference to the Judge having set out the relevant sentencing remarks in her decision. As submitted by Mr Terrell, at paragraph 19, the Judge has set out the relevant part of these, which specifically refer to the prosecution having conceded that no intention to kill was proved. We are satisfied that that forms the background to the observations made by the Judge in her assessment of the question of current risk commencing at [20] of the decision. As set out above, [25] cites a reference in the May 2024 OASys report in which the appellant states that hitting the victim was completely accidental and his intended victims with those that were threatening him. The Judge goes on to find that that reference in the OASys report suggests that " the appellant's remorse is not that he killed at all, but that he killed that particular person". The Judge goes on to state that this " is a significant qualification on his remorse".

 

24.     We are not satisfied that the appellant has established that the sentencing remarks were overlooked by the Judge or that the Judge's observations at [25] contradict those remarks. Paragraph 25 does not find that the appellant had an intention to kill contrary to the CPS concession. The appellant was convicted of murder and so there is no dispute that he did kill intending to cause serious injury. We are satisfied that the OASys report provided adequate grounds for the Judge to find that the appellant's remorse for killing was qualified. That is not the same as the Judge finding that at the time he killed the appellant had an intention to kill.

 

25.     Further, as submitted by Mr Terrell in response to our question, the grounds do not argue that there was an error in the Judge's finding that there was a significant qualification to the appellant's remorse. Instead, the argument in the grounds was that the Judge had failed to have regard to the concession that the appellant had not intended to kill. Mr Nadeem made no submissions on the Judge's finding regarding the qualification to the appellant's remorse. He confined his submissions to the Judge's failure to consider the sentencing remarks and we are satisfied that the Judge did have regard to those, and no material error is established.

 

26.     Paragraphs 12-15 of the grounds concern the Judge's assessment of the risk to the community the appellant poses and submit that the Judge failed to provide adequate reasons or attach sufficient weight to developments since the appellant's conviction. It is argued that, at [28], the Judge implies that because the appellant has committed murder there remains a risk he will do so again despite being assessed as low risk. We accept Mr Terrell's submission that the Judge's finding is justified. The risk may be remote, but nonetheless it exists, in view of the appellant's previous offending when he would also have been considered a low risk. That is a factor that the Judge was entitled to take into account.

 

27.     At [24] the Judge has accepted that the appellant was an exemplary prisoner and that there was " moving evidence of support to fellow prisoners experiencing serious mental health difficulties including from a fellow prisoner that the appellant was credited with persuading not to take his own life." Contrary to what is said in the grounds, the Judge has explicitly said that she has placed material weight on this.

 

28.     At [26] the Judge sets out that the appellant is assessed at being of low risk of offending but medium risk of serious harm to the public and medium risk of serious harm to known associates. The Judge stated that the victim's best friend is the brother of his second wife and that he refused to come to the appellant's wedding in May 2023. The Judge also stated the appellant has ongoing disputes with his estranged wife's family, whom he claims violently attacked him, and with the victim's family. She takes into account that the appellant claims to have responded without violence when attacked by his ex-wife's family. The Judge has also considered the appellant's family's evidence that he is " a soft hearted and kind man" . Again, these are all relevant factors to the assessment of future risk that the Judge has evidently taken into account.

 

29.     At [29] the Judge considers the length of time since the offence was committed, but also notes that the appellant remains in contact with the communities in which the context of a medium risk of serious harm arises. At [30] the Judge acknowledges that the assessment of the rebuttal was a finely balanced issue and that there are factors pointing in the appellant's favour but ultimately concludes that there remains a danger to the community. That was unquestionably a conclusion the Judge was entitled to reach. Despite the complaints about it made in the grounds and in Mr Nadeem's submission there has been no suggestion that it is an irrational conclusion, neither could that criticism be legitimately made. We are not satisfied that the Judge failed to have regard to relevant evidence or that she failed to adequately set out her reasons for the conclusion that she has reached. Instead we conclude that the Judge has given adequate explanation for a conclusion that was rationally open to her and find no basis for interfering with that decision.

Grounds concerning risk on return

30.   At [17] - [20] of the grounds, within the appellant's first ground of appeal asserting " Inadequate/Irrational reasoning " it is argued that the Judge made a "material misdirection" when stating at [42] that " The Appellant has provided no evidence to corroborate his claim to be from the same clan as his victim, which is what would give rise to this situation being in scope of the Diya practice." The grounds argue that this was a misdirection because it is said that the EU Agency for Asylum Report on Somalia, that had been served in the appellant's bundle of evidence, does not support the contention that the appellant had to be from the same clan as the victim to come within the scope of the Diya practice. Despite our invitation that he do so, Mr Nadeem did not elucidate on these paragraphs in his oral submissions stating that instead he would concentrate on what he regarded as the stronger arguments made in the grounds.

 

31.   We agree with Mr Terrel's submissions that the imprecise assertion of a misdirection made at [17] - [20] of the grounds ignores the way that the case was put to the Judge and misses the point the Judge was addressing. It was the appellant's case that the threat he faced in Somalia, from the family of his victim, was a threat from members of the same clan as that to which he belonged. Within that assertion was the claim that he would not be able to rely on his clan's protection but, on the contrary, the clan would support the victim's family not him. This is clear in his witness statement see for example [16] "[the victim's] family is from a the same tribe as me (sic) ....the elders in Somalia will take precedence" and [20] "My tribe and the victim share the same tribe, I have no family there and the tribe will take the victims side. " It is the way his case was put in the written representations he made in response to the stage 1 notice of an intention to deport him, and it was the way this case was put in the skeleton argument ahead of the hearing before the Judge. It was the issue that the Judge was required to resolve.

 

32.   In this context it is clear that the Judge's comment at [42] that the appellant's claim to be from the same clan as his victim " is what would give rise to this situation being in scope of the Diya practice" is a comment specific to the case being advanced by the appellant and her resolution of that specific case. That is the clear implication of the Judge's decision when it is read holistically rather than picking out one paragraph from it, and it is the clear implication of [42] of the decision itself, when that paragraph is considered with care, especially the Judge's explicit reference in the passage to " this situation." Contrary to the suggestion made in [18] of the grounds that this passage amounts to a general comment about the " scope of the Diya practice " the Judge is simply pointing out that a central part of the case the appellant was advancing was that he was from the same tribe as his aggressors and that for his claim to be successful he needed to make good that part of the case.

 

33.   Having done that the Judge goes on to give clear and cogent reasons for why the appellant had failed to prove that part of his case. It is apparent from the Judge's reasons that he did not, as Mr Nadeem at one point claimed without any justification, apply the wrong standard of proof. Neither did the Judge give " inadequate reasoning " for his conclusions about the limited weight he could give to the evidence of the appellant's family members. Rather the Judge gives cogent and compelling explanation for why she placed limited weight on the accounts of the appellant's family members including the fact that their written statements were largely identical, vague and, in the case of the appellant's brother-in-law, inconsistent.

 

34.   Viewed in the round the Judge has given adequate reasons for why she found the appellant had not established that he faced a risk of harm on return to Somalia. The Judge did not misdirect herself about the " scope" of the Diya practice, but instead has given careful consideration to the case which the appellant put before reaching the entirely rational conclusion that the appellant's case had not been established to the required standard.

 

35.   We do not find that the appellant has established an error of law in the Judge's assessment of whether there was a risk of the appellant's rights under Article 2 and 3 ECHR being breached.

Grounds concerning the Article 8 assessment

36.     It is argued in the grounds that the Judge has provided inadequate reasons for dismissing the appellant's Article 8 claim. At [36] of the grounds the appellant lists the factors in support of his Article 8 claim and argues that the Judge failed to adequately reason why these do not amount to very compelling circumstances.

 

37.     At [53] the Judge refers to the length of time the appellant has resided in the UK and at [54] the length of time since the offence was committed. At [59] the Judge records that the appellant has not been to Somalia since he was a child. At [62] the Judge notes that the appellant's strongest factor is the role he plays in caring for his mother who suffers from dementia and at [63] that it will be distressing for his mother to be separated from the appellant. It is clear that the Judge has had regard to the list of factors set out in the grounds.

 

38.     In finding that those factors do not amount to very compelling circumstances the Judge has set out that the appellant is single with no children, in reasonably good health, has numerous qualifications and some work experience [61]. The Judge finds at [63] that one of the appellant's siblings also lives with their mother and that their mother will not be left alone if the appellant is deported.

 

39.     The Judge has also found that the appellant will have family that he can turn to in Somalia. That finding is also subject to an additional challenge in the grounds, where it is argued that there was a lack of evidence before the Judge to support it and that the appellant's sister had not specified whether the relatives she was referring to were her relatives or her husband's. We are satisfied that it was reasonable for the Judge to interpret the appellant's sister's evidence that they had relatives in Somalia as evidence of her family's relatives, rather than her husband's, in the absence of clarification to the contrary. The appeal was not about her husband but about her brother. We are further satisfied that the Judge has explained why she has accepted the appellant's sister's evidence over the appellant's. The Judge has stated that she rejected the appellant's evidence because he had a motive to lie, and his sister did not have a motive to say that they had relatives when they did not. We also accept Mr Terrell's submission that headnote five of OA would further support the finding that the appellant is likely to have relatives in Somalia. That states as follows:

Somali culture is such that family and social links are, in general, retained between the diaspora and those living in Somalia. Somali family networks are very extensive and the social ties between different branches of the family are very tight. A returnee with family and diaspora links in this country will be unlikely to be more than a small number of degrees of separation away from establishing contact with a member of their clan, or extended family, in Mogadishu through friends of friends, if not through direct contact.

 

40.     The criticisms made in the grounds about the Judge's Article 8 assessment are not in these circumstances made out. Contrary to the grounds, the Judge had demonstrably considered within her assessment those factors that support the appellant's case. The Judge's conclusion that those factors were insufficient to outweigh the very strong public interest in the appellant's deportation is adequately explained in the decision including by reference to s117C(6) of the 2002 Act which states that the public interest requires deportation unless there are very compelling circumstances over and above the two statutory exceptions to the public interest in deportation of foreign criminals. We are not satisfied that the appellant has established an error of law in the Judge's Article 8 assessment.

 

41. For all the above reasons, we do not find the appellant able to show that the Judge has made an error of law, and certainly not one that was material to the outcome.

 

Notice of Decision

The appellant's appeal is dismissed

 

The decision of the First-tier Tribunal Judge does not contain an error on a point of law so the decision stands.

 

F Ripley

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

11 February 2025