Home Secretary fails in appeal to deport Somalian rapist

The Inner House of the Court of Session refused an appeal by the Home Secretary against an Upper Tribunal ruling, which had upheld a First-Tier Tribunal decision to allow an appeal by the respondent “AAH” against his deportation to Somalia.

The Lord President, Lord Carloway , sitting with Lord Brodie and Lord Glennie, heard that the respondent entered the UK in February 2002 using a false passport and was granted refugee status with indefinite leave to remain, on the basis of the risks to him in Somalia at that time, as he was a member of the minority Bajuni community.

However, in 2008 the respondent was convicted of two charges of rape, and two charges of assault with intent to rape, at the High Court in Glasgow, and he was given extended sentence with a nine-year custodial element.

Following his release from custody in September 2013, the respondent was detained under the Immigration Act 1971 and the appellant revoked his refugee status.

In October 2014 an order for his deportation was made under the Immigration Rules, relating to the change to the circumstances in Somalia, which, it was said, removed the risks previously associated with his return.

But the respondent challenged the deportation order and the First-Tier Tribunal ruled that the decision to return him to Somalia solely on the basis of the changes in that country had been “premature and not in accordance with the UK’s obligations under the Refugee Convention”, as there was the “potential for breaches of his human rights” under Articles 2 and 3 of the European Convention on Human Rights.

The FTT observed that, in terms of a 2014 country guidance decision in MOJ and others (Return to Mogadishu) Somalia, for ordinary civilians returning to Mogadishu, there was “insufficient risk” associated with a return to that city.

However, relocation to Mogadishu for a minority clan member, with no formal links to the city and no access to funds or family support, would be “unlikely to be realistic”.

The Home Secretary appealed to the Upper Tribunal (Asylum and Immigration Chamber), but the UT described the grounds of appeal as “weak and diffuse”, as they “failed to identify any error of law”.

On appeal to the Court of Session, the Home Secretary submitted that UT had failed to acknowledge that the FTT had erred in finding that there had been no change in country conditions in Somalia, and that both the FTT and UT had erred in failing to apply the country guidance in MOJ and Others.

Refusing the appeal, the judges said it was “not possible to fault the reasoning of the FTT”, which was “clear and cogent”.

Delivering the opinion of the court, the Lord President said: “The FTT did note the changes in Somalia generally and Mogadishu in particular, as set out in the country guidance, but explained their limitations in the south of the country where the respondent was from and to which he might normally have been expected to return.

“The FTT’s findings were specific to the respondent. It had properly considered the respondent’s prospects upon relocation to Mogadishu and in particular had had regard to his age, health, lack of societal support, funds and his language difficulty.

“The FTT had taken all of these circumstances into account. It did not simply take an absolutist approach to the effect that mere membership of the Bajuni minority, and not being a fluent Somali speaker, meant that relocation was unrealistic, although these factors may have been sufficient on their own. The UT did not do so either…”

Lord Carloway added: “The FTT had made its findings in fact based upon the evidence and neither it, nor the reviewing UT, can be validly criticised for making their determinations of fact. The decision of the FTT, that the respondent could not realistically be expected to relocate to Mogadishu, from his home state of Kismayo, was one of fact which was reached on the basis of country guidance on Mogadishu and the respondent’s particular circumstances.

“There was no error of law in carrying out that exercise. Although the grounds of appeal are phrased as involving errors in law, the appeal is essentially an attempt to review the FTT’s findings in fact. No error has been identified.”