About this case:

• Judgment:
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Mr Justice Adrian Colton stated that this Judicial Review did not raise any important point of principle or practice; and the Immigration and Asylum Chamber had not erred in law regarding arguments under Articles 3 and 8 of the European Convention on Human Rights

Background

Mr Abda Aziz Ibraham Osman, a 28-year-old Somalian arrived in the United Kingdom in December 2007, and in March 2008 he was granted asylum.

In April 2013, he pleaded guilty before Belfast Crown Court to false imprisonment and attempted sexual assault for which he was sentenced to 4 years’ imprisonment.

On release from prison he was placed into immigration detention and granted bail by the Immigration and Asylum Chamber (First Tier Tribunal, “FTT”).

In August 2014, the applicant’s asylum status was revoked due to the serious nature of his criminal conviction but he was granted leave to remain on humanitarian grounds.

In October 2015, he was convicted of breaching the terms of the sex offenders’ registration requirements; i.e. he changed his address without informing the PSNI, and was consequently imprisoned.

In March 2016, the applicant was served with a Deportation Order and was advised that the Secretary of State for the Home Department (SSHD) had revoked his humanitarian status.

The SSHD did not accept that the deportation would be in breach of the applicant’s rights under Article 3 and Article 8 of the European Convention on Human Rights.

The applicant lodged an appeal before the FTT against the deportation decision; which was dismissed.

Thereafter, the applicant lodged an application for permission to appeal to the Immigration & Asylum Chamber (Upper Tribunal, “UT”).

The FTT refused permission to appeal to the UT; and an application for permission to appeal directly to the UT was also refused.

Relief sought

The applicant sought the following reliefs:

(a) An order of certiorari to quash a decision of the UT (IAC) by which Upper Tribunal Judge Grubb refused the applicant permission to appeal to the UT (IAC) against a determination of IAC (FTT)

(b) A declaration that the decision is unlawful, ultra vires and of no force or effect.

(c) An order by way of interim relief suspending the effect of the impugned decision pending the determination of these proceedings.

(d) An order granting the applicant permission to appeal and remitting the case back to the Upper Tribunal for an appeal hearing.

Justice Colton explained that the statutory framework under the Courts & Tribunal Enforcement Act 2007, created the FTT and the UT as specialist asylum courts. An applicant seeking permission to appeal must only demonstrate that there is an arguable error in law in the FTT determination

October 2016 FTT decision

Crucially, from the applicant’s perspective, Judge Cox found that “the burden of proof is on the appellant to establish, on a balance of probabilities, that he meets the requirements of the relevant immigration rules in respect of deportation.”

Judge Cox found that the applicant would not face the prospect of living in circumstances falling below that, which is acceptable in humanitarian protection terms.

Application for leave to appeal to UT

The applicant’s case was that his removal from the United Kingdom and return to Somalia would not be compatible with his rights under Article 3 ECHR.

The applicant sought permission to appeal to the UT on the basis that there was a clear error of law. The FTT judge had applied the “balance of probabilities” standard of proof when she should have applied the “real risk” standard as per Vivarajah & Others v The United Kingdom ECHR 41.

The UT pointed out that the FTT judge had concluded that the applicant had not established a ‘real risk’ of treatment contrary to Article 3. The correct “lower standard” had been applied; and the judge had not erred in law.

Legal Principles

Justice Colton stated there had been no dispute as to the legal principles, and went on to consider In R (Cart) v Upper Tribunal UKSC 28; In Wu’s (Jun) Application NIQB 34; Re A & Others NI QB 86; and G & H v UT & SSHD EWHC 239

Applying the relevant law to the facts of the case, Justice Colton stated that the application could only proceed if the Court finds that:

(a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First-tier Tribunal against which permission to appeal was sought are wrong in law; and

(b) that either

(i) the claim raises an important point of principle or practice; or

(ii) there is some other compelling reason to hear it.

Justice Colton was not satisfied that either limbs of this test could be satisfied in the present application.

Accordingly, the application for leave to apply for judicial review was refused by the Court.