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DA011822012
Factual and Procedural Background
The Appellant, a national of Somalia, appealed against the Respondent's refusal dated 16 November 2012 to revoke a deportation order originally made on 9 April 2008. The deportation order followed a conviction in January 2006 for attempting to obtain a service by deception, resulting in a nine-month imprisonment and a recommendation for deportation. The Appellant initially claimed asylum upon arrival in the United Kingdom in December 2002, but his asylum claim was refused, and his appeal rights were exhausted in November 2004.
The First-tier Tribunal (FtT) dismissed the Appellant's appeal on asylum, humanitarian protection, and human rights grounds in a determination promulgated on 31 January 2013. The Appellant was granted permission to appeal to the Upper Tribunal, which set aside the FtT determination on 17 May 2013 due to errors in law, particularly concerning the assessment of future risk relating to the safety of return to Kismayo and the issue of relocation. The Upper Tribunal re-made the decision, considering the Appellant's appeal against the refusal to revoke the deportation order.
The Appellant had entered an Islamic marriage ceremony in August 2012 with a partner who holds indefinite leave to remain in the UK, raising family life considerations under Article 8 of the European Convention on Human Rights (ECHR) for the first time in the appeal proceedings.
Legal Issues Presented
- Whether the Appellant would be safe in Mogadishu and, if so, whether it would be unduly harsh to expect him to relocate there.
- Whether the Appellant would suffer serious harm in Mogadishu within the meaning of paragraph 339C of the Immigration Rules, entitling him to subsidiary (humanitarian) protection under the Qualification Directive (2004/83/EC).
- Whether deportation to Mogadishu would breach the Appellant's rights under Article 3 of the ECHR (prohibition of inhuman or degrading treatment).
- Whether deportation would breach the Appellant's right to family and private life under Article 8 of the ECHR.
- Whether the Appellant is excluded from humanitarian protection by paragraph 339D of the Immigration Rules due to his conviction and sentence.
- Whether the First-tier Tribunal erred in law in departing from binding country guidance and in its assessment of the genuineness of the Appellant’s marital relationship.
Arguments of the Parties
Appellant's Arguments
- The Appellant argued that he would be at risk of serious harm from Al-Shabaab and other militias in Somalia, particularly as a returnee from the West perceived as having breached religious codes.
- He contended that he could not safely relocate to Mogadishu or travel safely to Kismayo due to ongoing security risks.
- The Appellant relied on his established family life with his wife in the United Kingdom to support his Article 8 claim.
- He challenged the Tribunal's departure from the country guidance in AMM, contending that the evidence presented was insufficient to justify such departure.
- He submitted that the marriage was genuine and subsisting, opposing the Tribunal’s finding of a marriage of convenience.
- He argued that it would be unduly harsh and disproportionate to expect him to return to Somalia to apply for entry clearance.
Respondent's Arguments
- The Respondent maintained that the situation in Somalia, particularly Mogadishu and Kismayo, had changed with Al-Shabaab being driven out, and that the changes were durable.
- It was submitted that the Appellant could safely return to Mogadishu and travel by commercial flight to Kismayo, negating the risk of passing through Al-Shabaab-controlled territory.
- The Respondent argued that the Appellant did not meet the criteria for humanitarian protection exclusion under paragraph 339D, but even if he did, his deportation was lawful and proportionate.
- The Respondent contended that the Appellant’s marriage was not genuine but entered into to reinforce his immigration claims.
- The Respondent submitted that the public interest in deporting those who had committed criminal offences outweighed the Appellant’s private and family life claims.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Devaseelan (Second appeals ECHR Extra-Territorial Effect) Sri Lanka [2002] UKIAT 00702 | Guidance on assessing credibility and reconsidering evidence in repeated appeals. | Used as a starting point for considering earlier findings on credibility and evidence consistency. |
| AMM and others (conflict; humanitarian crisis; FGM) Somalia CG [2011] UKUT 445 | Country guidance on safety and risk assessment in Somalia, particularly Kismayo and Mogadishu. | Applied to assess the safety of Kismayo and Mogadishu; Tribunal found Kismayo unsafe at the time but noted changes. |
| MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) | Country guidance on risk and internal relocation to Mogadishu. | Applied to assess risk in Mogadishu and reasonableness of relocation; found no real risk to ordinary civilians. |
| R (Mayaya) v SSHD [2011] EWHC (Admin) | Definition of 'serious crime' for exclusion from humanitarian protection. | Guided the assessment that a 9-month sentence alone does not constitute a serious crime for exclusion. |
| AH (Algeria) v SSHD [2012] EWCA Civ 395 | Clarification of 'serious crime' and exclusion criteria under Immigration Rules and international law. | Used to interpret seriousness of the Appellant's offence and exclusion from humanitarian protection. |
| SG (Iraq) v SSHD [2012] EWCA Civ 940 | Requirement for decision-makers to follow country guidance unless strong cogent reasons exist. | Applied to assess whether Tribunal was justified in departing from AMM guidance. |
| Nagre v SSHD [2013] EWHC 720 (Admin) | Guidance on assessment of Article 8 claims and exceptional circumstances outside Immigration Rules. | Considered in evaluating whether exceptional circumstances existed to grant leave outside the rules. |
| MF (Nigeria) v SSHD [2013] EWCA Civ 1192 | Clarification that 'exceptional circumstances' in policy does not equate to an exceptionality test. | Supported the interpretation of Secretary of State’s guidance on exceptional circumstances. |
| MM (Lebanon) and Others v SSHD [2014] EWCA Civ 985 | Consideration of proportionality and balancing public interest in deportation cases. | Referenced in balancing Appellant’s personal circumstances against public interest. |
| Bundesrepublik Deutschland v B (C-57/09) and D (C-101/09) [2011] Imm AR 190 | Interpretation of exclusion criteria under EU Qualification Directive and Geneva Convention. | Used to support interpretation of 'serious crime' and exclusion assessment. |
| Huang v SSHD [2007] UKHL 1 | Guidance on the application of exceptionality tests in immigration decisions. | Discussed in relation to the application of exceptional circumstances in the Respondent's guidance. |
Court's Reasoning and Analysis
The Upper Tribunal undertook a comprehensive review of the Appellant’s case, considering all prior determinations, evidence, and relevant country guidance. It began by reaffirming the binding nature of previous findings, particularly those in Devaseelan, that the Appellant lacked credibility and that his evidence about his family and situation in Somalia was inconsistent and unreliable.
The Tribunal found that the Appellant was not excluded from humanitarian protection under paragraph 339D of the Immigration Rules, as the offence for which he was convicted—attempting to obtain a service by deception using false documents—did not constitute a 'serious crime' within the meaning of the Rules and relevant case law.
Regarding safety in Somalia, the Tribunal accepted the country guidance in MOJ, which held that Mogadishu was generally safe for ordinary civilians, including returnees from the West, provided they could avoid areas targeted by Al-Shabaab. It found no real risk of persecution based on clan affiliation or being identified as a returnee. The Tribunal concluded that there was no real risk of serious harm or breach of Article 3 rights in Mogadishu.
On relocation, the Tribunal applied MOJ guidance that relocation to Mogadishu would not be unduly harsh if the individual had access to clan or family support or financial means. It rejected the Appellant’s evidence that he had no family or support, finding his claims not credible and noting his apparent financial means and manipulative tendencies. Consequently, it found relocation to Mogadishu reasonable.
Concerning the Appellant's family and private life claims under Article 8, the Tribunal rejected the genuineness of the Appellant’s marriage, concluding that the Islamic marriage ceremony was a sham intended to deceive immigration authorities. It found no established family life and that the Appellant did not meet the requirements for leave under Appendix FM or paragraph 276ADE of the Immigration Rules. The Tribunal also found the Appellant’s private life in the UK to be shallow and limited, with minimal integration and no lawful status.
In balancing the Appellant’s circumstances against the public interest in immigration control and deterrence of unlawful conduct, the Tribunal concluded that deportation was proportionate and that no exceptional circumstances justified leave outside the Immigration Rules.
The Tribunal further held that the First-tier Tribunal erred in law by departing from binding country guidance without adequate reasons, failing to properly assess the durability of changes in Kismayo, the safety of travel to Kismayo, and the possibility of relocation within Somalia. It also erred in its assessment of family life under Article 8.
Holding and Implications
The Upper Tribunal DISMISSED the Appellant’s appeal against the refusal to revoke the deportation order on asylum, humanitarian protection, and human rights grounds.
The direct effect is that the deportation order remains in force and the Appellant is liable to be deported. No new precedent was established beyond reaffirming the application of existing country guidance and legal principles regarding exclusion, risk assessment, and Article 8 claims. The decision underscores the importance of credibility assessments, adherence to country guidance, and the proportionality balancing exercise in deportation appeals.
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