Liban v Secretary of State for the Home Department

On 20 September 2017, I was listed to consider two applications for judicial review:

I will refer to the last two matters collectively as ‘the second decision’. The Defendant accepted in the second decision, in relation to paragraph 353, that the new material (two reports from the same expert, Dr Hoehne, dated 20 December 2014 and 25 April 2016) was significantly different from the material which she had initially considered, but decided that the representations did not create a realistic prospect of success before the First-tier Tribunal (‘the FTT’).

The challenge to the claimant’s removal had become academic, as he was not removed on 10 September 2016, and there was no argument about it at the hearing. The claimant was represented by Mr Dixon and the defendant (‘the Secretary of State’) by Mr Anderson. I am grateful to both counsel for their helpful written and oral submissions. During the course of his oral submissions Mr Dixon made clear that (1) it was no part of the claimant’s protection claim that he would evangelise, and (2) the ‘burden’ of his argument was ‘on the increasing threat posed by Islamic extremists’.

Despite being ordered to file an acknowledgment of service on 27 May 2016, and, on 2 August 2016, to file detailed grounds, the Secretary of State filed no defence to this claim until late in the evening before the first day of the hearing. She filed no skeleton argument until the morning of the hearing. Having considered the parties’ submissions on the morning of the hearing, for the reasons then given in an ex tempore judgment, I gave the Secretary of State permission to take part in the hearing of the detention claim, adjourned the hearing of that claim, and transferred that claim to the county court.

Kerr J ordered a stay of the claimant’s removal on 9 September 2016. In response to directions made by Kerr J, the Secretary of State filed an acknowledgment of service and summary grounds on 16 September 2016. Neil Cameron QC, sitting as a Deputy Judge of the High Court, ordered a ‘rolled-up’ hearing of the application for permission to apply for judicial review in the second claim, and, if granted, of the substantive application. He joined the second claim with the detention claim.

A hearing was listed and vacated by consent. The Secretary of State agreed to consider the claimant’s further representations and his application to revoke the deportation order. She refused those on 20 December 2016. The claimant was given leave to amend his claim to challenge that decision. There was a hearing on 11 May 2017. The Secretary of State served detailed grounds in the second claim the day before the hearing. The Secretary of State served no defence in the detention claim. Morris J adjourned the hearing of both claims. Morris J granted, in the detention claim, an extension of time for the service of an acknowledgment of service, detailed grounds, and evidence. The Secretary of State did not serve any material in response to that order.

On 11 May 2017, Morris J granted bail, subject to the provision of a suitable address. The claimant was released on 7 June 2017. The claimant has since then been living in accommodation approved by the probation service. He has complied with the conditions of his bail.

The claimant is from Puntland in Somalia. He claims to have entered the United Kingdom using a false passport on 31 January 2005. He claimed asylum on 1 February 2005. The Secretary of State refused that claim and the claimant appealed to the Asylum and Immigration Tribunal (‘the AIT’).

An Immigration Judge (‘IJ’) heard, and dismissed, the appeal. The claimant’s asylum claim was, at that stage, based on his membership of a minority clan, the Jareer. The IJ recounted the claimant’s evidence about an incident in 2001 when he was instructed to wash cars by a security guard. He did so for four hours. The guard said he would pay him the next day. The claimant asked to be paid immediately half what he was owed. The guard refused. The claimant threw a stone at the guard, who then beat him up with a stick. He was in hospital for eight days. The appellant then worked as a labourer between 2002 and 2004. If he went back to Somalia, he had nobody there and nowhere to live. His aunt had gone to Ethiopia. The IJ found the claimant was credible overall and accepted his account. The IJ held that the claimant had not, however, made out any claim which could possibly be successful under either the Refugee Convention or the European Convention on Human Rights (‘the ECHR’). The claimant had worked and been paid except for one or two occasions. His aunt owned her house and was able to sell it. The background material showed that the situation in Puntland was better and that the Jareer were not at risk over and above the ordinary population. The IJ accepted that the claimant was the age he claimed to be. The claimant applied, unsuccessfully, for a statutory review of that decision.

On 23 March 2006, the claimant was convicted of three counts: destroying property, possessing an imitation firearm at the time of his arrest, and arson (reckless as to whether life was endangered). He was sentenced to imprisonment for public protection (‘IPP’), with a minimum term of one year and 207 days’ detention in a young offenders’ institution (time spent by the claimant in custody on remand having been deducted from a minimum term of two years’). The court recommended his deportation.

The claimant was given various opportunities to make representations about his threatened deportation. A deportation order was signed on 2 November 2012. The claimant appealed. His appeal was allowed by the FTT. The FTT accepted that the claimant was a Christian but had concealed this, because he was afraid of the consequences of disclosing his faith. The FTT relied on materials, set out in its determination, which showed that the claimant had disclosed that he was a Christian as early as 2006. The FTT did not, it seems, hear evidence from any expert (see paragraph 8 of the determination), although it seems that the FTT and the UT, on appeal, had copies of a report by Dr Luling, prepared in 2010.

The Secretary of State appealed successfully to the Upper Tribunal (‘the UT’). The UT’s determination was promulgated on 29 August 2013. The UT said that having considered the material, it could see no evidence that Al-Shabaab had an increasing and malevolent presence in Puntland (first paragraph 7), although there were plenty of reports of Al-Shabaab killing Christians in the parts of Somalia which they do, or did, control. There were none at all in Puntland. It was pure speculation that Al-Shabaab were infiltrating Puntland. The only example of a Christian being harmed in Puntland was an isolated incident, reported by Dr Luling, when a woman was killed by Muslims who did not belong to Al-Shabaab. An isolated killing would not be enough to establish a real risk to Christians in Puntland, where ‘their religion is officially tolerated by the authorities’.

The claimant relied on email from Bishop LeMarquand which asserted that anyone deported to Somalia who was known to be a Christian ‘will be in danger of persecution’. The UT’s decision on this issue (determination, paragraphs 10-12) is referred to in the Secretary of State’s decision of 20 December 2016, and I do not repeat that material here (see instead, paragraph 46 below).

After a hearing on 21 August 2014, the Parole Board (‘the PB’) decided that that it was no longer necessary for the protection of the public that the claimant continue to be detained and directed his release. The PB noted the positive progress the claimant had made since 2005. The PB also noted that it was probable that the claimant might not be released into the community in the United Kingdom, given his likely deportation. At the end of the custodial term of his sentence of imprisonment, the claimant was detained under immigration powers, pending his deportation, most likely pursuant to section 36 of the UK Borders Act 2007 (‘the 2007 Act’).

Dr Hoehne, as he mentions in his first report, and as the Secretary of State noted in her decision dated 19 June 2015 (‘the first decision’), gave evidence as an expert in the UT in a relatively recent Country Guidance case, MOJ & Ors (Return to Mogadishu) (CG) [2014] UKUT 442. His evidence was considered in detail in paragraphs 106-160. It was not received with unqualified favour. For example, in paragraph 155, the UT said, ‘Once again, we can detect in that answer a propensity to present information in the least positive manner possible’.

Neither of Dr Hoehne’s reports lists the documents which he was asked to consider as part of his instructions. Nor have I been shown any of the material to which he referred in his footnotes. The copy of the report I have seen is not dated, but in the first decision, the Secretary of State mentions that the report was dated 20 December 2014. In paragraph 18 of his first report, Dr Hoehne said he had visited Puntland in 2004 and in 2010, and that he follows events there closely. He did some field work on the Western margins of Puntland in 2010 and 2011 near an Al-Shabaab stronghold in the Golis Mountains, 60 km west of Bosaso, the major port of Puntland. In paragraph 33, he explains that he was in Puntland for three months in 2004 and for ‘a few days’ in 2010.

In paragraph 32 he says that Puntland’s 2009 constitution allowed freedom of worship, but forbade the conversion of Muslims to other religions. It forbade proselytism by any other religion. Article 12 permitted non-Muslims to practise their religion and prevented their forced conversion to Islam. Muslims were not allowed to abandon their faith.

The new constitution was adopted in 2012. Dr Hoehne quotes the provisions of the new Puntland constitution which deal with religion, in his own translation. In short, every person and the all institutions are subject to Sharia; Islam is the only state religion; no other religion can be spread in Puntland; the laws and culture of Puntland are based on Islam; a non-Muslim is free in his religion and cannot be forced to accept Islam; a Muslim cannot abandon his religion. The material in this report does not show how, if at all, the 2012 constitution differs from the 2009 constitution as respects religion.

In paragraph 33, as I have already said, Dr Hoehne refers to the time he has spent in Puntland (not long: see paragraph 16, above). He says that he ‘frequently’ encountered a very conservative version of Islam there. In discussion with his informants, he ‘realised that the idea of a Muslim man turning to another religion abhorred [sic] those Somalis with whom I spoke about it (in Puntland and elsewhere). In paragraph 34, he says that on 20 December 2014, he rang an informant, a Mr Mirre, who works for local government in Galkayo, and asked ‘if it would be possible for a Somali man to practice [sic] Christian religion in public in Puntland. Without hesitation, he answered in the negative. This is fully in accordance with my earlier insights into the matter’.

Dr Hoehne’s assessment, in paragraph 35, is that ‘Somalia in general (including Puntland) is well known as being one of the two most difficult places for Christians on earth (after North Korea).’ The authority for this proposition is a report compiled by Open Doors International, a charity which supports Christians who are harassed, attacked or jailed because of their faith. The report is called the 2014 World Watch List.

Dr Hoehne says that legislation indicates that any religion other than Islam is considered an aberration. He summarises the effect of the provisions of the constitution. He then says that the spread of any other religion but Islam is clearly illegal and can lead to imprisonment. He cites no evidence in support of the second clause in that sentence. He then says that while religious freedom is formally respected, for non-Somali visitors, it is not granted for Somalis. He cites no evidence in support of either of those propositions, except ‘My own experiences in (northern) Somalia, including Puntland as well as the telephone conversion with my informant on 20 December 2014 confirmed this’. In the previous paragraph, however, he gives a limited account of that conversation, which does not support those wider propositions. In paragraph 36 he says that he is ‘convinced’ that the claimant would not be able to practise Christianity openly in Puntland.

In paragraph 37, Dr Hoehne said that he did not know of any churches in Puntland. He expresses his opinion that such places would be a breach of paragraph 8(2) of the new constitution (which forbids the spreading of religions other than Islam). He also says that given the presence of Al-Shabaab in parts of Puntland and its clandestine networks throughout Puntland such official places of worship would have been the subject of massive attacks. This is speculation, as he does not know, either, of any churches, or, it must follow, of any attacks on churches.

In paragraph 38, Dr Hoehne replies to the question whether the claimant’s physical characteristics would allow him to be recognised as a Jareer. He says that in this respect he agrees with Dr Luling’s report dated 3 July 2012, produced in this case. This report is not in the documents I have seen. Dr Hoehne has seen people being insulted as ‘slave’ if they look African. He refers to vernacular racist stereotypes that are widespread in Somalia and lead to ‘stigmatisation and marginalisation’ of ‘Somali Bantu’.

Dr Hoehne was asked what would be the risk for the claimant if he returned to Puntland as a Christian. He refers to paragraphs 32-36, where he says ‘it was indicated that it is not accepted to be Christian…in Puntland…’. But Dr Hoehne does not explain what risks that non-acceptance would or might entail.

Dr Hoehne’s ‘assessment’ in paragraph 41 is that if the claimant were known to be a Christian, he would ‘certainly face extreme pressure and enmity by ordinary people’. He refers to the extreme intolerance of Somalis towards other religions. This concerns the issue of apostasy. Because he is a Somali, even if he had been born a Christian, other Somalis would not accept that. ‘In Somali eyes, a Somali has to by [sic] a Muslim’. Dr Hoehne cites no evidence in support of that statement. In paragraph 42, he says that the claimant would face severe social and legal punishment. He cites no source in support of that proposition. This, he says, could include, but would not be confined to, ‘verbal harassment, beating, imprisonment, and attempts on his life (particularly by Islamic extremists in the region)’. This would be exacerbated by the fact that he is a ‘Bantu’, and commands no respect and cannot experience any social support in Puntland. ‘In my view it has to be assumed that even killing him would hardly lead to any action from the side of the state authorities’.

Question 7 was about the current situation of Christians in Puntland. Dr Hoehne referred back to paragraphs 30-36. He stressed, by reference to paragraphs 18-21, that Al-Shabaab currently has a presence in Puntland, operating in and around Bosaso and frequently attacking Galkayo. It carried out assassinations in 2013 in the capital, Garowe. In addition to ‘general and structural problems’ they are in danger from the operations of Islamic extremists in the region. Dr Hoehne could not ‘imagine’ that there would be any effective protection for the claimant if he were persecuted on account of his religion, because of his low status (paragraph 44). There was no place in Somalia where he would be safe freely to practise his religion (paragraph 45). If he were removed to Puntland, as a ‘Bantu’, he would ‘certainly’ face verbal harassment, and possibly beating, and ‘certainly’ grave social isolation. If it were known or suspected that he was a Christian, ‘he would additionally face imprisonment and possibly killing by Islamist extremists’.

The Secretary of State considered and rejected further submissions from the claimant in the first decision. Those included Dr Hoehne’s first report. She also decided that those representations were not a ‘fresh claim’. There was no challenge to the first decision. Mr Anderson accepted, correctly, nonetheless, that since the Secretary of State was bound, when making the second decision, to consider all the earlier materials, including Dr Hoehne’s first report, together with all the new material, the fact that the second decision was not challenged did not entitle the Secretary of State, when making the second decision, to ignore Dr Hoehne’s first report.

Given the lack of challenge to the first decision, however, I will only summarise the main points which are relevant to the second claim. The Secretary of State summarised the findings of the AIT about the claimant’s protection claim based on his clan membership and of the UT about his claim based on his Christian faith. The Secretary of State said that she had fully considered, in a decision dated 16 May 2014, the claimant’s concerns with the decision of the UT.

The Secretary of State concluded that there was nothing in Dr Hoehne’s report to suggest that the level of indiscriminate violence in Puntland was great enough to engage article 15(c) of the Qualification Directive. She then considered Country of Origin Information, and decided that this showed that the Puntland government was tackling Al-Shabaab with some success, though Al-Shabaab continued to operate in the region. The claimant did not, she decided, have a protection claim based on any lack of security in Puntland.

The Secretary of State repeated the findings of the UT about the claim based on the claimant’s Christian faith, and quoted paragraph 12 of that determination. Dr Hoehne’s report contained evidence of prejudice against Christians, but not of persecution. It contained ‘…no verifiable evidence that Christians are being persecuted in Puntland by either agents of the government or Islamist militia’. The Secretary of State then referred to the UT’s consideration of social discrimination against Christians. She concluded that the claimant did not have a well-founded fear of persecution on the grounds of his faith.

The Secretary of State then considered Dr Hoehne’s claims about the risks to the claimant because he was a ‘Bantu’. She referred to the findings of the AIT on this, and to her conclusions in a decision dated 6 November 2012. This said that the objective evidence showed ‘a degree of discrimination and occasional violence’ from the majority towards the Jareer. But the claimant had encountered limited problems as a result. Dr Hoehne’s report gave no grounds for thinking that the situation had got worse since the decisions in 2005 and 2012.

The Secretary of State concluded by deciding that the claimant had not shown that he had a well-founded fear of persecution on either ground, or a real risk engaging articles 2 or 3 of the ECHR. She also decided that the claimant was excluded, in any event, from a grant of humanitarian protection, because he had committed a ‘serious crime’. The Secretary of State had considered whether any other provisions of the ECHR were engaged, and decided that, on the basis of the information she had, none was. She also refused to revoke the deportation order, because no relevant exception to the duty imposed by section 32(6) of the UK Borders Act 2007 applied. Finally, she considered the claimant’s applications under paragraph 353 of the Rules. She decided that they did not amount to a ‘fresh claim’.

Various documents were submitted to the Secretary of State in late 2016. Since Mr Dixon’s challenge to the second decision focussed on Dr Hoehne’s second report, I will describe it, and will not consider the other materials which were sent. The second report is dated 25 April 2016. It was not sent to the Secretary of State until 31 October and 15 November 2016 (see the email of 6 December 2016). In the very first paragraph on the first page, Dr Hoehne says that he has ‘carefully read the materials sent’ to him by his solicitors ‘that comprise of a letter of instructions plus the following documents: the decision of Home Office dated 19 June 2015…[ellipsis in the original] [PLEASE ADD HERE OTHER DOCUMENTS I SAW IN THIS CASE; YOUR INSTRUCTIONS DID NOT COME UP WITH A LIST OF DOCUMENTS AS WOULD BE USUAL]’.

This passage indicates, in my judgment, a troubling lack of care by Dr Hoehne. First, he was, for some reason, unable himself to list in the report the documents he had read ‘carefully’ when preparing the report, and, second, he was content for the report to go out on the assumption, which he plainly did not test, that his solicitors would complete the list for him, and without checking their work. The result is that the final version of the report includes this passage which, to my mind at least, should embarrass an expert who owes duties to the court as well as to his client. This approach means that, apart from express references to documents, for example in footnotes, it is impossible to know on what material Dr Hoehne based his report. This passage is not referred to by the Secretary of State in the second decision, but it is in such a prominent place in the report that no-one reading it could miss it, or miss its implications.

In paragraph 3, Dr Hoehne refers to giving evidence in MOJ. He does not, however, mention the qualified reception which his evidence received.

Paragraphs 5-16 concern the situation in Mogadishu. In paragraphs 17-22, the report considers security in Puntland. He refers to attacks by Al-Shabaab and to the government’s response. None of this material describes attacks by Al-Shabaab on civilians in Puntland (apart, I infer, from one fatal attack near a teashop in Galkayo in March 2016), still less attacks on Christians.

In paragraph 23, Dr Hoehne points out ‘(sic!)’ two typos in the first decision. Ironically, this paragraph itself contains two typos: a reference to a decision dated ‘19 June 2016’ and the word ‘countinue’ (a mistranscription of a word in the first decision). Dr Hoehne finds the ‘argumentation’ in paragraphs 27 and 28 of the first decision difficult to follow. He opines that the claimant’s religion and clan membership would make him a target ‘in a situation where extremists operate that are notorious for persecuting anyone who exhibits a different political vision and a different faith’. The latter group are Somalis who reject Al-Shabaab’s interpretation of Islam. Being a Christian is for a Somali man a grave violation of Islamic principles. Somalis are very conservative Muslims. They consider any Somali as Muslim by birth. Being born a Christian is not acceptable ‘according to my insights into Somali society based on three years of field research on the ground and engagement with Somali affairs since 2002…a Christian Somali - in their view - has erred and fallen from the true faith. Apostasy is punishable by death according to Shari’a and Al-Shabaab have in the past beheaded numerous Somalis accused of being Christians (in southern Somalia)’.

He accepts that no beheadings by Al-Shabaab have been reported in Puntland (presumably, of Christians, or of anyone else). But, he says, Al-Shabaab ‘is still active and even stepping up its activities in parts of Puntland’. The regional government did not have the situation under control. Whole units of Al-Shabaab had entered and fought the army. The situation was far from clear, and Dr Hoehne expected more attempts to push into Puntland from the south, while west of Bosaso, they continued to hide out in the mountains, spreading insecurity. It was too early to say that the government was managing Al-Shabaab. On the contrary, it had a continued presence and was trying to establish itself more strongly. ‘But even only a clandestine presence of the movement would put [the claimant] at real risk of persecution and deadly attacks by followers of the extremist group. Somali Christians are absolutely intolerable in the eyes of Al-Shabaab…he is certainly a nuisance to the extremists and an easy prey since he is additionally to having the ‘wrong faith’ a member of a minority group…whose members do not enjoy security and basic rights in Puntland…’

In paragraphs 27-32, Dr Hoehne deals with membership of a minority clan. He refers to evidence of discrimination against minority clans. The discrimination ‘complements’ the already poor human rights and security in Puntland. He wonders how the Home Office can speak of ‘a degree of discrimination’ and ‘occasional violence without going into more detail’. He then recounts, at some length, the car-washing incident (in 2001) which was considered by the AIT in its determination in 2005. He does not refer to the claimant’s account of working in the port between 2002 and 2004. Dr Hoehne apparently accepts that he does not know whether the security guard was held accountable or not, but he says that ‘In my view it is also unlikely that a member of the security forces will ever be held accountable for beating or even killing a Jareer’. He mentions several ‘stories’ he heard in the field about members of minority clans ‘disappearing’ if they ‘became politically or otherwise too “ambitious”. Their bodies were later found’ but no steps taken to find out what happened. Dr Hoehne opines that the claimant’s one experience shows ‘in my eyes that he exactly belongs to this category of people in Puntland …who can be hurt and even killed with impunity’ (paragraph 31). He again ‘wonder[s] how the Home Office can classify this structural marginalisation…and this concrete assaults on a person’s physical integrity with impunity as not sufficiently serious to warrant protection according to law.’ In his view, and ‘according to the sources I have referred to in this section, this is not an exceptional form of mistreatment, but the rule’. The sources are uncheckable, and the webpage referred to in a footnote seems to be about minority women. Jareer are at the mercy of majority groups, including the ‘particularly quite brutal members of the security forces’. The claimant’s personal experience supports that. ‘…this situation certainly has not become better since 2005; most likely it has worsened in my eyes, due to generality insecurity in Puntland…’

In paragraph 34, Dr Hoehne quotes paragraph 35 of his first report. He then refers to a US State Department report for 2012. This mentions harassment, and discrimination, and the fact that there were no public places of worship for non-Muslims. He also refers to the equivalent report for 2014. This describes social pressure and harassment of those who practised their religion openly. It says that Christians and members of other religions keep a low profile. Conversion from Islam to another religion is said to be ‘socially unacceptable’. The word ‘persecution’ is used in an extract from a third report, which quotes from an unsourced letter from an un-named academic. The use of the word ‘persecution’ is not explained and no examples are given. Dr Hoehne’s conclusion is that Somalis who are or who become Christians are not ‘acceptable socially or politically’. Against that background, ‘I maintain that [the claimant] as a Somali Christian would face serious persecution and harassment…which would be exacerbated by his membership of a minority group’. He would face dire consequences: ‘constant harassment, permanent hiding…in permanent fear of physical attacks by conservative or Muslim extremists, even those not actively belonging to an extremist group like Al-Shabaab’.

The relevant application to revoke the deportation order was made on the last page of a letter to the Secretary of State dated 31 October 2016. This said that since the deportation order had been made, the claimant’s risk had significantly reduced. The Parole Board had directed his release in 2014. There was nothing adverse since then. His good behaviour had been recognised and he had been appointed a ‘violent reduction representative’. Further, it had been accepted in the tribunal proceedings that his date of birth was 24 December 1987, so that he was 17 when he committed the offences. Section 33(3) of the UK Borders Act 2007 was ‘an important statutory steer as to the importance of considering age’.

The Secretary of State listed, correctly, and summarised, the further representations which she had to consider. She incorporated, by reference, the account of the claimant’s history set out in her decision of 19 June 2015, and then summarised what had happened since. In paragraphs 14 to 60, under the heading ‘Consideration of submissions’, and as foreshadowed in paragraph 14, she considered the material in the further submissions.

I will now summarise the reasoning in the decision about the claimant’s protection claims. The Secretary of State described Dr Hoehne’s expertise in paragraph 16. In paragraphs 17-25, the Secretary of State summarised Dr Hoehne’s 2016 report. Mr Dixon did not criticise that summary. The material reasoning in the decision, dealing with Dr Hoehne’s report, is in paragraphs 26-41. The relevant section of the report is headed ‘Consideration of protection claim’. In paragraph 26, the Secretary of State said that she had taken into account Dr Hoehne’s report and a response received to a Country of Origin Information Request dated 27 September 2016.

In paragraphs 27-29, she examined ‘the security situation regarding Al-Shabaab in Puntland’. She quoted an extract from the response to the Country of Origin Information Request about this. This said that Al-Shabaab had been active in Puntland but did not have control of the area. The government had taken successful action against Al-Shabaab, preventing them from making substantial advances. She then quoted material in Dr Hoehne’s report, dealing with security operations against Al-Shabaab. Her conclusion (paragraph 29) was that while she accepted that Al-Shabaab had launched attacks in Puntland, the country of origin information ‘shows that they certainly do not have control of the area’ and the government had taken successful action against them. There was nothing, therefore, to show that the claimant would be at risk from persecution from Al-Shabaab in Puntland and there was nothing to suggest a risk from indiscriminate violence engaging article 15(c) of the Qualification Directive. I interpose that Mr Dixon did not suggest that the Secretary of State erred in her conclusion about article 15(c).

In paragraphs 30-35, she considered ‘the issue of your religious beliefs and whether you would suffer ill-treatment in Puntland as a result of you being a Christian’. She referred to Dr Hoehne’s view that, after North Korea, Somalia is well known as one of the two most difficult places to be a Christian on earth.

The Secretary of State then reminded the claimant of the findings of the UT in its determination promulgated on 29 August 2013. The UT contrasted the claimant’s own experience, as recounted to a probation officer in April 2006, which was that he and his aunt had experienced some discrimination being a Christian in a largely Muslim country, with assertions made by Bishop LeMarquand. The UT observed that in order to be discriminated against for that reason, the claimant must have been known to be a Christian, but he had given no account of suffering persecution on that ground. Bishop LeMarquand, the UT continued, had ‘very little evidence to back up his bold assertions’. The UT referred to Country of Origin Information which said that Christianity is officially tolerated, though evangelism of Muslims is strictly forbidden. There was social discrimination and non-Muslims who practised their religion openly could be harassed. The UT referred to one example of a woman being killed in Galkayo in 2009. It concluded that none of that material amounted to a real risk of serious ill treatment or amounting to persecution or breach of articles 2 or 3. The isolated incident did not show a general risk. Given the absence of a real risk to Christians, ‘the HJ (Iran) argument in the present case simply does not get off the ground’. It is clear from paragraph 3 of its determination that the UT refers here to the decision of the Supreme Court in 2010 in that case (see further, paragraph 75, below).

The Secretary of State then considered the current position in Puntland, by reference to recent Country of Origin Information. This showed that Christians in Puntland were likely to experience discrimination but not persecution. Restrictions had been put on non-Islamic religions and conversion from Islam to Christianity is socially unacceptable. The Secretary of State also cited a US State Department report from 10 August 2016 which described provisions of the constitutions of Somaliland and Puntland which declare Islam the state religion, prohibit the conversion of Muslims to other religions, bar proselytising on behalf of other religions, and require all laws to comply with the general principles of Sharia. Those who are suspected of conversion face harassment. The Puntland constitution prohibits any law or culture that contravenes Islam, though that concept is not defined. The Puntland government neither banned nor imposed financial penalties on religious groups.

In paragraph 35, the Secretary of State concluded that Christians faced discrimination in Puntland, not persecution, and that the claimant would not experience persecution based on his religion in Puntland. Dr Hoehne’s assertions that the claimant would face serious persecution and harassment in Somalia as a Somali Christian were ‘not supported by the information given above or any other independent objective evidence. Rather, this conclusion seems to be the personal opinion of the author’.

In paragraphs 36-39 she considered the claim that the claimant would be at risk as member of a minority clan. The Secretary of State examined paragraphs 31 and 32 of Dr Hoehne’s April 2016 report and the 31 October submissions. These were that the claimant would face discrimination and that he would be even more conspicuous on his return, and that he belonged to a group who could be hurt and even killed with impunity. As a Jareer, he would be at the very bottom of Somali society. The Secretary of State said that this point had been considered in the June 2015 decision, which she quoted. It was accepted that there was a degree of discrimination and occasional violence against the Jareer, but it was not accepted that they were serious enough to engage the United Kingdom’s obligations under the Refugee Convention or European Convention on Human Rights. By his own account, the claimant had suffered only limited problems because of his clan membership.

In paragraph 37, she noted that the June 2015 decision observed that Dr Hoehne had stated in his 2014 report that the situation for the Jareer had not worsened since the decisions in 2005 and 2012 so as to warrant international protection. This is incorrect. The 2015 decision (paragraph 38) was that Dr Hoehne’s report provided no evidence that the situation had deteriorated. The Secretary of State decided that, even taking into account Dr Hoehne’s 2016 report, she did not accept that the claimant would be at risk from being a Jareer in Puntland. She referred also, in paragraph 39, to recent Country of Origin Information which indicated that there was no information to show that the Jareer were at risk of persecution in Puntland. That information was based on eight different objective, independent, sources, which she listed.

In paragraph 40, she considered the submission that the claimant was at risk not only because of his faith, but as a member of a particular social group, as a member of the Jareer clan. The Secretary of State referred to the decision of the IJ in 2005. He said that the background materials showed that the situation was better in Puntland and that the Jareer were not generally at risk there over and above the ordinary population. The Secretary of State said that this claim had been carefully considered in previous decisions, and earlier in the current decision. She did not accept that the claimant would be at risk in Puntland.

She considered, in paragraph 41, the argument that the claimant would face ‘double marginalisation’ and be at risk from other groups apart from Al-Shabaab. The current Country of Origin Information did not come to that conclusion. It stated that Al-Shabaab were not in control of Puntland and that Christians face discrimination but not persecution. In paragraphs 42-57, she considered the materials which were submitted on behalf of the claimant from 31 October onwards. Mr Dixon did not criticise that consideration, so I say no more about it.

In paragraph 58, significantly, she said ‘In light of the above, it is not considered that you have raised a fresh claim, and given the length of your prison term, you are excluded from humanitarian protection’. She dealt, in paragraph 59, with a point made in the 31 October 2016 submissions about the claimant’s age when he committed the offences, ‘and that at the time of your offence you would have been seventeen and that this would exempt you from automatic deportation’. This shows how the Secretary of State understood this aspect of the 31 October 2016 representations. It is clear that she did not understand it as a submission based on article 8. The Secretary of State pointed out that what mattered for the purposes of liability to automatic deportation was the claimant’s age at the date of conviction and sentence, which was 18. He was not, therefore excluded from automatic deportation. She also pointed out that while the IJ in 2005 had accepted the claimant’s claimed age, he had refused the claimant’s asylum and human rights claims and had not recommended that any leave be granted.

She then rejected, in turn, with short reasons, the claimant’s article 2 and article 3 claims (paragraphs 61 and 62).

In paragraphs 63-68, she decided that the claimant was excluded from humanitarian protection, on the ground that he had committed a ‘serious crime’. That decision is not challenged. In paragraphs 70-71, she decided not to revoke the deportation order, because, as a result of section 32(6) of the 2007 Act, she had no power to revoke the deportation order, given that no exception under section 33 applied, and section 34(4) did not apply. In paragraph 74 she expressed her conclusion that the claimant had no right to stay in the United Kingdom on any basis, and in paragraph 75, that there were no grounds to revoke the deportation order.

In paragraphs 76-81, she considered paragraph 353 of the Rules. She quoted paragraph 353. Under the heading ‘Submissions that have previously been considered’, she correctly summarised the points which the claimant had raised previously (the treatment of Christians, and of members of the Jareer clan in Puntland). She said that those had been considered in the decision of 19 June 2015, that the submissions were not significantly different from the material considered then. ‘Therefore’, she said, ‘they do not amount to a fresh claim’. Under the heading ‘Submissions which have not previously been considered but which do not create a realistic prospect of success’, paragraph 80 reads ‘Below is a consideration of the submissions which have not previously been considered but which taken together with the previously considered material, do not create a realistic prospect of success before an immigration judge’. What follows is a list of the material: Dr Hoehne’s 2016 report, and to the other material dating from 2016. Paragraph 82 reads ‘As your submissions do not create a realistic prospect of success before an Immigration Judge, they do not amount to a fresh claim’.

‘Fresh claims’

Paragraph 353 of the Immigration Rules HC 395 as amended (‘the Rules’) applies when an asylum or protection claim has been refused, and the claimant makes further representations. The Secretary of State decides, first, whether she accepts those representations or not, and if not, whether, nonetheless, they constitute a ‘fresh claim’ which entitles the claimant to an in-country appeal against the refusal of the representations.

The test is in two stages. First, the Secretary of State has to decide whether the new material is significantly different from the material originally relied on. If she considers that it is, she then has to consider whether, taken with the original material, it creates a realistic prospect of success before the FTT. The test to be applied by the Secretary of State has been described by the Court of Appeal as ‘a somewhat modest test’ (WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495; [2007] Imm LR 337, paragraph 7). In his skeleton argument, Mr Dixon cited extensively from a later decision of the Court of Appeal in AK (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 447; [2010] 1 WLR 885, on the question what constitutes a ‘realistic prospect of success’. That analysis draws on the decision of the House of Lords in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6; [2009] 1 WLR 348.

The important issue in this case, however, is decided in MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193; [2011] 1 WLR 3200. The Court of Appeal reviewed the authorities and held that the test to be applied by the court in supervising the decision of the Secretary of State was whether the Secretary of State’s conclusion was unreasonable. In Caroopen v Secretary of State for the Home Department [2016] EWCA Civ 1307; [2017] 1 WLR 2339, the Court of Appeal, obiter, described this approach as the ‘most recent and authoritative analysis of the caselaw on paragraph 353 (see footnote 13 to the judgment of Underhill LJ).

In MN the Court of Appeal expressly considered the ‘disarray’ in the authorities on this issue, and held that the Wednesbury test, applied with anxious scrutiny, was the correct test. The Court of Appeal rejected the approach taken in TK v Secretary of State for the Home Department [2009] EWCA Civ 1550 to the correct test for supervising decisions under paragraph 353. Mr Dixon relied on the speech of Lord Phillips in ZT (Kosovo) for a different test from the test in MN. ZT was expressly considered in MN. I consider that I am bound by the decision in MN. Its narrow ratio is that Wednesbury is the correct test. I therefore reject Mr Dixon’s written submission, repeated orally, that I am bound by TK, or by ZT (Kosovo) to apply a different test.

There was some debate in submissions about the quality of reasoning which is required in decisions about paragraph 353. On this I was referred to the judgment of Laws LJ in TK and to the decision of the Court of Appeal in HN and SA (Afghanistan) v Secretary of State for the Home Department [2016] EWCA Civ 123. Laws LJ was a member of the Court. He and Floyd LJ agreed with the judgment of McCombe LJ. The reasoning of the Court in each case turned on the structure of the decision letter the Court was considering. I consider that, in so far as I can deduce the contents of the decision letters in each case from the judgments, the decision letter in HN was closer to the decision letter in this case than the decision in TK. In paragraph 83 of HN, McCombe LJ said that it would not be right to insist that the decision maker has to state the paragraph 353 test expressly in relation to each point which is considered in the decision letter. In any event, ‘It was not the individual points that mattered, but the amalgam of them’.

Deportation

Section 3(5) of the Immigration Act 1971 provides that a person who is not a British Citizen is liable to deportation if the Secretary of State considers that his deportation is conducive to the public good. Section 5(1) gives the Secretary of State a power to make a deportation order when a person is liable to deportation. The UK Borders Act 2007 (‘the 2007 Act’) creates a framework for the automatic deportation of some foreign prisoners. Section 32(4) of the 2007 Act provides that for the purposes of section 3(5)(a) of the 1971 Act, the deportation of a ‘foreign criminal’ is conducive to the public good. ‘Foreign criminal’ is defined in section 32(1) as a person who is not a British Citizen and who has been convicted in the United Kingdom of an offence and to whom one of the conditions in section 32(1) and (3) applies. The first is that the person has been sentenced to a sentence of imprisonment of more than 12 months.

Section 32(5) imposes a duty on the Secretary of State to make a deportation order in respect of a foreign criminal, subject to section 33. Section 33 enacts various exceptions to the application of that duty. Exception 1 is where deportation would breach the foreign criminal’s rights under the ECHR or under the Refugee Convention. Exception 2 is ‘where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction’. Section 33(7) explains the effect of the application of an exception. Giving the judgment of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, Lord Reed explained (in paragraph 12) that if deportation would breach the Convention rights of a foreign criminal, section 33(7) does not prevent the application of section 32(4), or the making of a deportation order, but it means that the duty imposed by section 33(5) no longer applies (see section 33(2)(a) read with section 33(1)(a)). This puzzle is perhaps explained, he said, by the fact that a breach of Convention rights caused by deportation (or, I add, of rights under the Refugee Convention) need not be permanent.

I should also refer to the provisions inserted in the Nationality Immigration and Asylum Act 2002 (‘the 2002 Act’) by the Immigration Act 2014. Section 117A of the 2002 Act provides that Part 5A of the 2002 Act applies where a court or tribunal has to decide whether a decision made under the Immigration Acts breaches a person’s article 8 rights and would therefore be unlawful under section 6 of the Human Rights Act 1998. In considering the ‘public interest question’ the court must, in particular, have regard in all cases, to the matters listed in section 117B, and in cases concerning the deportation of foreign criminals, to those listed in section 117C. ‘The public interest question’ is the question whether an interference with a person’s right to respect for his private and family life is justified under article 8(2) (section 117A(3)).

Section 117B(4)(a) provides that little weight should be given to private life established when a person is in the United Kingdom unlawfully. Section 117C(1) provides that the deportation of foreign criminals is in the public interest, and section 117C(2) that the more serious the offence, the greater is the public interest in deportation. Section 117C(3) provides that where the criminal has not been sentenced to a period of imprisonment of four years or more, the public interest requires his deportation unless one of two exceptions applies. Section 117C(6) provides that where a person has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. Section 117D(4)(d) provides that references to a person who has been sentenced to a period of a certain length of time include a person who is sentenced to a period of detention, or ordered or directed to be detained, for an indeterminate period, provided that it may last for at least that length of time.

In Hesham Ali the Supreme Court did not consider Part 5A of the 2002 Act, because it was not in force at the relevant time, but the provisions of the Rules which the Supreme Court did consider in Hesham Ali are echoed to some extent in the provisions of Part 5A. Lord Reed, with whose judgment the other members of the Court agreed (apart from Lord Kerr), cited with approval, at paragraph 14, a statement by Laws LJ in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998, paragraph 54, that for a claim under article 8 of the ECHR to outweigh the strong public interest in the deportation of foreign criminals, it must be ‘a very strong claim indeed’. That is also the conclusion which Lord Reed reached having analysed the Strasbourg cases (at paragraph 50). He approved the phrase ‘very compelling’ (used by Lord Dyson MR in paragraph 43 of MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544).

Lord Kerr’s analysis was that if the risk of re-offending was low, that reduced the weight to be given to the public interest in deportation. None of the other members of the Court agreed with that. There is no analysis of the components of that public interest in Lord Reed’s judgment. Lord Kerr referred to the decision of the Court of Appeal in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694; [2009] INLR 109, paragraph 15, which described three components of that interest: risk of re-offending, deterrence and public revulsion at the commission of criminal offences. He expressed a strong view that the expression of social revulsion at crime should not be seen as a component of the public interest in deportation (judgment, paragraph 168). He questioned the relevance of deterrence, but in the case of settled migrants only. The claimant in this case is not, of course, a settled migrant.

Mr Anderson referred in his oral submissions to two decisions of the Court of Appeal which pre-date Hesham Ali: Danso v Secretary of State for the Home Department [2015] EWCA Civ 596, and Velasquez Taylor v Secretary of State for the Home Department [2015] EWCA Civ 845. In both, the Court of Appeal made it clear that the weight which could be given in a deportation case to any rehabilitation of a foreign criminal was limited. Both referred to factors other than the protection of the public from harm from future offences by the foreign criminal which comprise the wider public interest in the deportation of foreign criminals. Those include the marking of public revulsion at the offender’s conduct and the need to deter others. I am bound by the approach of the Court of Appeal in those two cases.

The decision under paragraph 353 of the Rules

I have summarised Dr Hoehne’s two reports and the two decisions at some length, and already commented on them to some extent. This enables me to consider the challenge to the decision under paragraph 353 relatively briefly. I bear in mind that while, no doubt, the Secretary of State will give appropriate weight to well-reasoned conclusions of an expert which are supported by objective evidence, she is not bound to accept everything an expert says, merely because an expert says it. I also bear in mind that the Secretary of State had to apply the tests in paragraph 353 to material which she had just considered in detail, in the first part of her decision, and had rejected as the basis for any grant of leave. She had also said, in that part of the decision (at paragraph 58), that she did not consider that the claimant had raised a fresh claim. I did wonder when I first read the second decision whether the Secretary of State’s reasoning about paragraph 353 was too compressed. However, having looked closely at Dr Hoehne’s two reports, and at the Secretary of State’s detailed reasons for rejecting the further representations, I do not think so. The Secretary of State quoted paragraph 353 in full, and correctly understood how to apply those tests. Having regard to the approach of the Court of Appeal in HN, I consider that she was entitled to conclude, in particular, that the new material, taken with the material she had already considered, did not create a realistic prospect of success.

There are four main points. First, the claimant’s case was not that there was a general risk of indiscriminate violence engaging article 15(c) of the Qualification Directive. The evidence which Dr Hoehne referred to fell far short of suggesting such a risk, but it also fell far short of establishing the required risk to Christians in Puntland. Dr Hoehne could point to no evidence at all of attacks by Al-Shabaab (or by other extremists) on Christians in Puntland. Indeed, he only refers to one attack in which any civilians are likely to have been involved. The other confrontations were between Al-Shabaab and the army. Nor did he rely on the isolated example given by Dr Luling in her much earlier report, which the UT had decided was not enough to show such a risk, perhaps for the good reason that the assailants in that case were not from Al-Shabaab. Whether or not Al-Shabaab were in control of Puntland is neither here nor there; there just is no evidence to show that there had been any attacks on Christians by Al-Shabaab in Puntland. In that situation, the Secretary of State was reasonably entitled to decide that this aspect of the claim had no realistic prospect of success before the FTT.

Second, the Secretary of State was entitled to conclude that Dr Hoehne’s assertions about the persecution of Christians in Puntland were not supported by the Country of Origin Information, or by ‘any other independent objective evidence’. By his own account, the evidence on which Dr Hoehne relied in this context was sketchy and uncheckable. He makes assertions about the legal position, including liability to imprisonment, which are not supported by the provisions of the constitution which he quotes, or by any other source. He reports one statement from his telephone informant, which is used to support much wider inferences later in his reasoning. A key part of his reasoning, that all Somalis are regarded as Muslims, even if they are born Christian, is no more than a bare assertion. That is the foundation of the assertion, which underlies part of his case on persecution, that a Somali who is born a Christian would be seen as an apostate. He apparently makes a further leap, unsupported by evidence, that the Sharia punishment for apostasy is practised by the authorities in Puntland. He also asserts that the constitution’s general promise of freedom of religion only applies to foreigners, and not to Somalis, but gives no authority for that assertion. It is inconsistent with the express terms of the constitution. It follows that the Secretary of State was also reasonably entitled to decide that this aspect of the claim had no realistic prospect of success before the FTT.

Third, Dr Hoehne does little to undermine the conclusions of the 2005 AIT decision, or the objective evidence, about the position of the Jareer in Puntland. He apparently fails to appreciate that the car-washing incident in 2001, to which he gives great weight, was considered by the AIT 2005 and that the AIT had concluded that it was not evidence of any risk engaging either Convention. He speculates, because he has no evidence either way, that the security guard was never held accountable, and refers to ‘stories’ he has heard in the field. The tone of this part of the report is surprisingly subjective, and overall, this part of the report reads as if it is based on unverifiable sources, speculation and guesswork. In paragraph 39 of the second decision the Secretary of State relies on Country of Origin Information which is based on listed, independent and objective sources, to rebut Dr Hoehne’s conclusions about persecution of the Jareer. It follows that the Secretary of State was also reasonably entitled to decide that this aspect of the claim had no realistic prospect of success before the FTT.

Fourth, if the Secretary of State was reasonably entitled to reach those conclusions on those three aspects of the claim, it follows that she was also reasonably entitled to decide that the claim that the claimant would face the requisite risk from the combined effect of his Christian faith and of his clan membership.

Mr Dixon submitted that, in at least three passages in the second decision, the Secretary of State had misdirected herself by asking whether the claimant would be at risk. If this is a misdirection, it is one that is, if anything, favourable to the claimant. But, in any event, he also accepted that the decision should not be parsed minutely. If these expressions of the test are in any way erroneous, I reject the submission that any such errors materially affect the essential reasoning in the decision.

Mr Dixon also suggested that the decision of the Supreme Court in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 596 was relevant. There are three points. First, this is not articulated in the further representations. Second, and in any event, had it been articulated, the reasoning of the UT in the 2013 determination is a complete answer to it. Third, as I think Mr Dixon was constrained to accept in his reply, there is no evidence of examples of persecution in this case.

The application to revoke the deportation order

Mr Dixon submitted that the exception which applied in this case was that the claimant’s deportation would breach his article 8 rights. The first difficulty with that submission is that that is not the way in which the application to revoke the deportation order was framed, and it is clear, from the passage in the second decision which I quoted above, that it is not how the Secretary of State (reasonably, in my view) understood that application. The application to revoke the deportation order does not refer to article 8 expressly, or in my view, by implication. Indeed, it does not expressly engage with the need to show that the duty imposed by section 32(5) had been disapplied by one of the exceptions in section 33, nor does it explain which exception is said to apply, or how. The points about the claimant’s progress do not, of themselves, invoke such an exception. The point about his age does not establish an exception, as the relevant exception is only engaged if the foreign criminal was, in the view of the Secretary of State, under 18 at the date of conviction (rather than at the date when he committed the offence).

I would be reluctant to dismiss this part of the claim on what may be a harshly literal reading of the October 2016 application. I will therefore consider whether, on the facts, the Secretary of State would have erred if she had concluded that the claimant’s article 8 rights would not be breached by his deportation.

The starting point is Part 5A of the 2002 Act. The effect of section 117B(4)(a) in this case is that a court or tribunal is required to give little weight to the claimant’s private life in the United Kingdom, because it was established, and continued, when he was here unlawfully. It is a nice question whether the claimant’s sentence is one to which section 117C(6) applies or not. The UT had to consider a different, but similarly worded provision in its decision in 2013. The UT was puzzled by the word ‘may’ in the provision which was equivalent to section 117D(4)(d). I share that puzzlement. Section 117D(4)(d) would make more sense if the word was ‘must’. To the extent that section 117D(6) is ambiguous, it should be construed against the Secretary of State. In my judgment, while the sentencing judge expressly passed a sentence of four years’ imprisonment on count 5 (transcript, page 5B), the overall effect of the IPP sentence was that (if, which is unclear, it is right to disregard the time spent in custody on remand), the claimant would spend at least two years in prison, but no more. In my judgment, this sentence did not fall within section 117C(6). But it does not matter which limb of section 117C applies to this case. In either event, the public interest requires deportation; the exceptions listed in section 117C(4) and (5) do not apply, and it is not suggested, and if it had been, I would have rejected the suggestion, that this is a case in which there are circumstances such as are described in section 117C(6).

I note that, albeit on different facts (the claimant has since then been released from his indeterminate sentence, he has now been living in the community since June 2017, and the positive factors described in the October 2016 letter did not exist in 2013) the UT (in its determination dated 29 August 2013) gave the article 8 argument short shrift. The Upper Tribunal noted that the claimant was an illegal entrant, that he should have returned to Puntland when he lost his asylum appeal, and that most of his private life had been built up in prison. In those circumstances, the UT Judge ‘simply [did] not see how his right to private life [could] outweigh in the proportionality balance the public interest considerations which the Court of Appeal has repeatedly emphasised…’ I have carefully considered whether the factors described in the October 2016 letter change that analysis. I do not consider that they do. It follows that the Secretary of State was entitled to reject the claimant’s application for the revocation of the deportation order.

The claim is arguable, just, at least as respects the paragraph 353 decision, since on the face of it, the Secretary of State was disagreeing with the report of an apparently experienced expert. I grant permission to apply for judicial review of that aspect of the second decision, but refuse permission to apply for judicial review of the decision refusing to revoke the deportation order. I refuse the substantive application for judicial review.