Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01875/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 31 August 2016
On 23 September 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

M F H
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Hodgetts, instructed by South West Law
For the Respondent: Mr I Richards, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The anonymity order made by the Upper Tribunal following the hearing on 31 March 2016 remains in force.
Introduction
2. The appellant is a citizen of Somalia who was born on 30 June 1994. She comes from Mogadishu. She arrived in the United Kingdom on 2 October 2013. On 8 November 2013 she claimed asylum. On 10 January 2015, the Secretary of State refused her claim for asylum, humanitarian protection and under Art 8 of the ECHR.
3. The appellant appealed to the First-tier Tribunal. In a determination promulgated on 21 July 2015, Judge L Murray dismissed the appellant's appeal on all grounds.
4. The appellant appealed to the Upper Tribunal. Permission was initially refused by the First-tier Tribunal but on 13 October 2015 the Upper Tribunal (UTJ Storey) granted the appellant permission to appeal.
5. The basis of that permission to appeal was that the judge had failed properly to consider the risk to the appellant as a female member of a minority clan, the Reer Hamar in returning to Mogadishu where her husband remained. The specific risk relied upon was the risk of sexual violence.
6. Following a hearing on 31 March 2016, I concluded that the First-tier Tribunal had erred in law in failing to consider whether the appellant would be at risk on return to Mogadishu on this basis. Consequently, I set aside the First-tier Tribunal's decision (excluding Art 8 which had not been challenged) and directed that the appeal be relisted for a resumed hearing before the Upper Tribunal in order to remake the decision.
7. The resumed hearing came before me on 31 August 2016.
The Resumed Hearing
8. The sole issue relied upon by the appellant before me was that her return to Mogadishu would amount to persecution and a breach Art 3 as there was a real risk that she would be subject to sexual violence as a minority clan woman. It was not suggested before me that the appellant was not a refugee if the risk was established on the basis that she as a returning (minority clan) woman without adequate protection fell within a 'particular social group' for the purposes of the Refugee Convention.
9. Following discussion with Mr Hodgetts, who represented the appellant and Mr Richards who represented the Secretary of State, it was accepted that I should determine the appeal on the basis that the only family member that the appellant had in Mogadishu was her husband. Further, it was accepted that she would not be able to receive any financial support from her sister in the UK. Whether or not her husband was working, was accepted to be a matter for me to determine on all the evidence.
The Evidence
10. Mr Hodgetts relied upon his detailed and helpful skeleton argument in which he referred to numerous pieces of background evidence. The evidence was contained principally in two bundles - one prepared for the initial error of law hearing ("EoL bundle") and the second prepared for the resumed hearing ("RH bundle"). In addition, Mr Hodgetts relied upon the expert report of Omer Ahmed dated 21 June 2016.
11. Mr Richards placed before me the most recent Country Information and Guidance document from the Home Office dated 2 August 2016 entitled "Somalia: Women fearing gender-based harm and violence" (version 3).
12. No oral evidence was given before me.
The Submissions
13. In summary, Mr Hodgetts' submissions can be stated as follows:
(1) The risk of sexual violence to women in Somalia (including Mogadishu) is widespread and committed with impunity;
(2) That risk arises both from individuals and also from government forces, militia, and Amisom troops;
(3) the risk of sexual violence is greater in IDP camps but is not restricted to it. There is still a real risk outside an IDP camp;
(4) The risk is greater to women who are members of a minority clan;
(5) Protection may be available where a woman has a 'male network' of clan protection but that is restricted to where she (or her husband) is from a majority clan. That is because effective clan protection comes from the existence of majority clan militia or the power to invoke "diya" (blood money) which is restricted, in practice, to majority clans;
(6) The Somali state is unable to provide a sufficiency of protection against sexual violence by individual or government officers etc who commit acts of sexual violence;
(7) Internal relocation was not an option for the appellant.
14. In respect of the appellant's individual circumstances, Mr Hodgetts relied upon the fact that the appellant was a woman who belonged to the minority, Reer Hamar Clan. On return to Mogadishu she would only have, as family, her husband who was himself a member of a minority clan. Their circumstances would be such that they would be likely to live in a less affluent area of Mogadishu. He accepted that they would not have to live in an IDP camp. He submitted that it was likely that both the appellant's husband and the appellant herself would have to work. The appellant would, as a result, have to move around Mogadishu either to work or visit markets etc which would expose her to the risk of sexual violence. The appellant would have no "male network" or majority clan protection to prevent or deter sexual violence against her. The level of risk identified in the background material and the expert report exposed the appellant to a real risk of sexual violence and therefore a real risk of persecution and a breach of Art 3 on return. There was no sufficiency of protection from that risk and it was not suggested by the Secretary of State that the appellant could internally relocate outside of Mogadishu.
15. On behalf of the Secretary of State, Mr Richards acknowledged, not least on the basis of the Home Office Country Information and Guidance document dated 2 August 2016, that there was a level of sexual violence directed against women in Mogadishu. Mr Richards submitted, however, that the appellant would not be returning as a "single woman" without the protection of a male network. That, he submitted was the basis upon which the Strasbourg Court had concluded that it could be a breach of Art 3 for a woman returning to Mogadishu in RH v Sweden (application no 4601/14) [2015] ECHR 786 (10 September 2015). Mr Richards submitted that the appellant would be returning to her husband. As a married woman, Mr Richards submitted that as a matter of commonsense she was less at risk than a single woman. There was no reason to believe that her husband could not economically support her on return and there was no reason to conclude that they would be living in one of the more deprived areas of Mogadishu such as to require her to work or travel across Mogadishu with the consequent risk to her. Mr Richards submitted that the nature of protection identified in the evidence (including the expert report) provided to women from a majority clan flew in the face of MOJ and Others (return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) that clan militias were not active in Mogadishu.
16. Mr Richards submitted that, looking at the evidence as a whole, there was no real likelihood that the appellant would face a risk of sexual violence amounting to persecution or serious harm and a breach of Art 3 on return to Mogadishu.
17. Mr Richards did not seek to argue that the appellant could obtain a "sufficiency of protection" from the Somali authorities or that the appellant could be expected to internally relocate.
Discussion
18. The background material to which I was referred establishes that the risk of sexual violence to women is widespread in Somalia including Mogadishu. That violence is committed both by individuals as well as government forces and security forces such as AMNISOM troops. The United States Department of State 'Country Report on Human Rights Practices for Somalia 2015' (13 April 2016) (RH bundle pages 371-394) states in section 6 as follows:
"Although statistics on cases of gender-based violence in Mogadishu were unreliable, international and local NGOs characterized such violence as pervasive. Government forces, militia members, and men wearing uniforms raped women and girls. While the army arrested some security force members accused of such rapes, impunity was the norm. AMISOM troops committed sexual abuse and exploitation, including rape ? Local civil society organizations reported several cases of gang rape. For example, in May a 14-year-old girl was allegedly gang-raped after attackers forced her off a minibus taxi. After the case was reported to a Criminal Investigation Department station, the police officer in charge refused to file the complaint and instead detained the victim for making false claims. The victim claimed the police officer that ordered her arrest repeatedly raped her.
According to local human rights organizations, IGA security forces in Galinsoor (between Galkaayo and Adaado) gang-raped four women on August 29. The incident was brought to the attention if IGA authorities, but no legal action was taken against the perpetrators."
19. The Human Rights Watch Report, "Here rape is normal a five-point plan to curtail sexual violence" (13 February 2014) (RH bundle pp. 1-80) makes much the same point in the summary section (at pages 8-9 of the bundle):
"Sexual violence is pervasive in much of Somalia. Two decades of civil conflict and state collapse have created a large population of displaced persons and other people vulnerable to sexual violence. At the same time it has destroyed the state institutions that are supposed to protect those most at risk. Armed assailants, including members of state security forces, operating with complete impunity, sexually assault, rape, beat, shoot, and stab women and girls inside camps for the displaced and as they walk to market, tend to their fields, or forage for firewood. Members of Somalia's long marginalized minority communities are particularly at risk.
The United nations reported nearly 800 cases of sexual and gender-based violence in Mogadishu alone for the first six months of 2013. The actual number is likely to be much higher.
Many victims will not report rape and sexual assault because they lack confidence in the justice system, are unaware of available health and justice services or cannot access them, and fear reprisal and stigma should they report rape. According to the UN Children's Fund (UNICEF)n about one-third of victims of sexual violence in Somalia are children.
After two decades of state collapse and armed conflict, Somali medical services and the justice system, including police and the courts, are profoundly ill-equipped to support and assist victims of sexual violence. As a result, women and young girls face what the UN's independent expert on human rights in Somalia refers to as "double victimization" - first the rape or sexual assault itself, then failure of the authorities to provide effective justice or medical and social support."
20. That report, coming from a highly respected NGO, repays careful consideration as it highlights the very real problem of sexual violence to women in Somalia (including Mogadishu) and the breadth of the sources of such violence together with the impunity with which it is carried out. The prevalence and dangers to women whether or not in IDP camps and without protection is chilling.
21. A further Human Rights Watch, World Report published in 2016 (cited in para 4.1.5 of the Home Office's Country Information and Guidance dated 2 August 2016) refers to "alarming levels of sexual violence". That report goes on to refer to soldiers deployed with AMISOM: "sexually exploited and assaulted women and girls in their bases in Mogadishu."
22. The report continues that:
"Few women file complaints due to fear of reprisals and absence of effective and safe complaint mechanisms. The African Union, and Burundian, and Ugandan authorities investigated specific allegations, although no prosecutions had occurred at time of writing".
23. The Home Office's own document summarises the position as regards risk in Southern and Central Somalia including Mogadishu as follows in para 2.3.1:
"There is widespread discrimination of women in Somalia. Gender-based violence - including domestic violence, rape, sexual abuse, exploitation and trafficking - is often committed with impunity by a range of actors including government security forces, members of armed opposition groups, militias, family and community actors and Amisom peacekeepers ?"
24. The background evidence also demonstrates that the risk of sexual violence is not restricted to IDP camps and is greater in respect of minority clan women. The United Nations, "Conflict-related sexual violence: Report of the Secretary-General (March 2015) (23 March 2015) (at page 89 of the RH bundle) states that:
"? 2,891 incidents of gender-based violence were reported between January and August 2014 in Mogadishu alone. Of these, 28% were cases of rape and 9% were sexual assaults. These numbers are regarded as a gross underestimation, as fear of stigma and reprisals inhibits reporting. Most reported cases (81%) involved internally displaced persons, who number more than 1,000 across the country, with members of minority clans exposed to greatest risk."
25. As Mr Hodgetts submitted, whilst 81% of the incidents of sexual violence occurred in IDPs, 19% occurred elsewhere in Mogadishu and that, in itself, is a significant number. The risk is said to be "greatest" for women from minority clans. The figures are also an underestimate because of the inhibition on reporting such attacks (see also, e.g. Human Rights Watch Report at para 19 above). The fear of reporting sexual violence by women is also referred to in the US State Department Report in section 6. That report also identified the ineffectiveness of the government to enforce the criminal law and that there are: "Patterns of rape perpetrated with impunity, particularly of displaced women ? and members of minority clans." (see page 392 of the RH bundle).
26. In his skeleton argument, Mr Hodgetts cited (at para 2) copious passages in the background evidence, too numerous to set out in this determination, consistent with the material I have cited.
27. In addition, the expert report of Omer Ahmed is entirely consistent with and fully supports the other material I have already cited. At page 4 citing the UN Report, he refers to the "significant risk" of sexual violence to Somali women, in particular those from minority clans, in Mogadishu and the reporting of such violence. At page 5, he quotes the statistical figures of 81% of reported cases involving women in IDP camps but 19% of the 2,891 reported in eight months in Mogadishu, being acts of sexual violence at the rate of "two to three women per day" in Mogadishu.
28. At page 6 he continues:
"Whilst there has been some signs of increased political willingness at the executive level to address sexual violence within the Somali government, this has not manifested itself in meaningful measures to protect women or to begin to end impunity for sexual violence which remains endemic, with IDPs and minority women at greatest risk."
29. One of the reasons, the expert states, that sexual violence is "so widespread" in Mogadishu is the inability of the authorities to provide adequate control through the security forces. At page 6 he concludes that: "The Somali government is wholly unable to provide protection to women at risk of violence". At pages 7-8 he sets out a number of reasons why sexual violence is "rampant" in Mogadishu
"Further reasons as to why sexual violence, is rampant in Mogadisho include.
a) The presence of a large number of armed men in Mogadisho consisting of different national armies, and militias (and sometimes disparate factions within each), combined with poor control and command, chronic indiscipline. This means that rape and other forms of sexual violence are routinely carried out by peacekeeping, government forces and militias aligned thereto.
b) The Status of Forces/Status of Mission Agreement between the United Nations and the Federal Government of Somalia, is such that peacekeepers are guaranteed immunity from criminal or civil liability for their actions. This has resulted in a chronic lack of accountability of the UN peacekeeping operations, in Somalia (AMISOM), which means that even where an individual soldier or official is identified as having been implicated in acts of violence towards civilians, including rape and sexual violence, it is not possible for either the state, or the victim to obtain legal or other redress. This underwrites the widespread impunity for sexual violence, which is the norm in Somalia.
c) Moreover, the armed groups operating in Somalia, including local and international security forces, and the different militias and have been implicated in widespread and often systematic acts of sexual violence targeting Somali women, and minority women are likely to be disproportionately targeted for such sexual violence.
d) Lack of effective command and control.
e) The prevalence in and around Mogadisho of a large and vulnerable population of women, girls and young children in unprotected IDP camps, the majority of which are inhabited by members of minority clans including Reer Hamar. Further, the prevalence of clusters of such minority clan members living outside of the camps but situated very close to them who have similar vulnerability.
f) Weak indigenous legal protection and remedies for victims of sexual violence, which contribute to impunity for sexual offences.
g) The political settlement in Somalia established in August 2012 (the 4.5 point formula) effectively institutionalised the clan discrimination which had developed and deepened during the Somali conflict), and this has deepened the clan based deep social inequality within Somali society. This continues to have a deleterious impact on the position of minority women.
Consequently, whereas the state is unable to protect Somali women in general from sexual violence, the state is least able, and less likely to protect women who are of Somali minority clan including the Reer Hamar, from sexual violence. Consequently, minority women who are at heightened risk of sexual violence are less likely to be either willing, or able to avail themselves of the states obligations to protect its citizens, be they from the mainstream or as members of a particular social group."
30. The fact that women from minority clans are at greater risk is widely reflected in the background material to which I was referred and the expert report. The basis for it is the absence of any deterrent that may flow from the fact that a potential victim of sexual violence is not, unless your husband is a member of a majority clan, subject to the protection and deterrent effect of majority clans including through their 'clan muscle' of their militias or the deterrent affect of the customary Somali law and 'diya' (blood money) system. The position is set out in a document produced by the Minority Rights Group International entitled "Looma Ooyaan - No-one cries for them; the predicament facing Somalis minority women) (January 2015) (at pages 97-128 of the RH bundle) at page 119 the report says this:
"A major contributing factor to the vulnerability of minority women is their limited access to justice or legal compensation. Somali culture has a traditional mechanism of 'blood compensation' (diya) for death and injury in inter-clan disputes, which is also paid in lesser amounts for other crimes such as rape. Diya for women is half that of men and is paid to the clan of the woman's father or husband. Discussion of sexual matters is taboo, hence rape often goes unpunished, and there is no recourse for domestic violence because it is not culturally considered as abuse. Minority women face greater risk of gender-based abuses amid lack of access to institutional protection and redress against violations. Payment of diya for instance does not extend to minority groups in the same manner as majority clans - minority groups receive lower compensation and have no recourse in instances where the payment is never made."
31. The same point is made by the expert at pages 10-11 of his report:
"It is true that a Somali woman from a majority clan, could rely on her husbands clan for protection (assuming that he is himself not a member of a minority clan, in which case he would not be able to extend protection at all). Where the husband is of a minority clan, he will not have a clan militia with kinship obligations to protect him or his family.
For majority clans, protection operates as a deterrence against violence because the kinship ties in place will guarantee the existence of a substantial Diya paying group. Diya (blood money paid as a compensatory award following a serious incident) is the essence of clan protection, and constitutes the formal obligation of all male clan members to make a financial contribute to payment of Diya where for example a member of the clan has killed, injured or damaged the interest of a person from another clan. However, where a member of the clan is killed or injured, the elders of that clan will organise the male relatives to seek either a Diya payment for the insult, or violent retribution.
Minority clans lack the numbers, to resolve incidents using these cultural norms of dispute resolution. The vulnerability of minority women therefore stems from their position as a minority and the paucity of male clan numbers able to contribute to the deterrence and protection of a clan militia. Knowledge of this fact amongst other Somali clans is itself a driver of violence, and human rights abuses. It is important to note that a male of a minority clan is also highly vulnerable to violence for the same reason that minority women are at risk. A minority man is no more able to extend protection to himself than to a spouse. Both are adversely affected by the conflict dynamics in Somalia save that the incidence of risk to women is so much higher."
32. At pages 14-15, the expert deals with the specific question put to him of whether the presence of a minority clan husband would afford a greater level of protection to minority women. The expert concludes that it would not as the "protection" stems from the availability of protection from a majority clan. The expert said this:
"Firstly the presence of a husband is not per se a deterrent against sexual violence. Where the husband is a member of a minority clan he will not have access to a clan militia, and will not be able to provide protection to a minority woman. It is for this reason that men in minority clans, have often been obliged to marry their daughters to members of majority clans, transferring responsibility for her protection and safety to a family with access to clan support including the strong deterrence of an armed militia if necessary.
The current guidance suggests that a Somali woman who is from a minority clan (in the instant case a Reer Hamar woman), is at greater risk of sexual violence. This position has subsisted throughout the 25 year duration of the conflict in Somalia. Awareness of the plight faced by Reer Hamar and other women from minority groups in Somali has been apparent and reflected in the pertinent literature.
The reasons why Reer Hamar women are at greater risk of and actively targeted for sexual violence is noted above and is also as follows:
a) In social anthropological terms, the Reer Hamar are not considered to be one of the noble clans of Somalia, and therefore do not enjoy the implicit social, political and physical protection of a clan militia.
b) Secondly, minority clans by their nature are very small in number, and their population has been further sharply reduced with the ethnic cleansing of areas inhabited by minority clans in the 1990s, and their long term displacement in refugee camps in Northern Kenya and Ethiopia. Consequently there are very few Reer Hamar men available to protect the clan.
c) Consequently, to assert that the existence or mere presence of a husband is sufficient to protect a Reer Hamar woman from an increased risk of sexual violence and other harm, is to fail to understand the nature of social protection in Somali culture.
In Mogadisho and southern Central Somalia, it is the presence of and accessibility, to a strong clan networks which determine the extent of deterrence and protection to which a woman has access. Moreover clan protection is most effective in situations of structured organised violence, and is not particularly effective in protecting women from sexual violence, but does extend some protection in the form of a genuine threat of retribution and retaliation against members of the offending clan, and to that extent acts as a deterrence of sorts. Even this level of deterrence is not available to women from minority clans.
Moreover it is incorrect to assert that a minority Reer Hamar woman can be protected from violence, by her husband who is himself Reer Hamar. This is to fundamentally misunderstand how clan protection operates from, and conflates the existence of a husband with genuine protection from risk. The former has no impact on protection, and the latter can only be achieved through clan protection underwritten by the implicit threat and deterrence of a clan militia.
Because it is acknowledged that minority groups including the Reer Hamar, do not have clan protection it is factually erroneous, to also assert that a Reer Hamar husband would be able to provide protection. This is because he has no access to the normal means of deterrence and protection to be able to protect himself. He is therefore much less likely to be able to protect his spouse.
It is access to a clan militia and the deterrent effect of major clan networks which is determinative of the ability to access protection, not the husband of each individual woman. For this reason, it would not be feasible for the husband of a Reer Hamar woman to protect her from attack, unless he is himself of a majority clan.
Where a Reer Hamar woman is married to a man who is himself from a minority clan, it is likely that he would be not able to protect himself, and certainly would be unable to protect his Reer Hamar wife or other family members from any kind of violence, such that a minority woman could not rely on the presence of a husband such as would extinguish or significantly ameliorate the risk on return of sexual violence or other harm. In this context the appellant's individual vulnerability and level of risk as a returnee, is not extinguished by the presence of a husband, as the minority woman on return would in this context remain vulnerable to human rights violations."
33. In my judgment, this material strongly supports Mr Hodgetts' submissions that there is a real risk of sexual violence in Mogadishu to a returning woman from a minority clan who will return with only the support of her husband who is himself a member of a minority clan.
34. Mr Richards sought to rely upon the Strasbourg Court's decision in RH v Sweden on the basis that in para 70 the court had identified the risk category as: "A single woman returning to Mogadishu without access to protection from a male network".
35. He relied upon para 74 where, in considering that applicant's case, and rejecting her claim under Art 3, the court said:
"? she has family living in the city, including a brother and uncles. She must therefore be considered to have access to both family support and a male protection network. Furthermore, it has not been shown that the applicant would have to resort to living in a camp for refugees and IDPs."
36. Mr Richards sought to equate the presence of the appellant's husband with "a male protection network".
37. Whilst I accept that the Strasbourg Court concluded that "a single woman" without a "male network" for protection would be at risk under Art 3, the court did not exclude a wider potential risk category. It is wholly unclear from the Strasbourg Court's judgment whether the applicant in that case was a woman from a majority or minority clan. The judgment makes no reference to her clan status. In any event, the applicant clearly had more than a minority clan husband in Mogadishu, she had family including a brother and uncles. That is not this appellant's situation. I must, however, decide this appeal on the basis of the evidence before me. The Strasbourg Court did not consider evidence concerning the position of minority clan women explicitly. In my judgment, its decision cannot be read so as to exclude the possibility of a claim by a minority clan woman in the appellant's circumstances.
38. The background material and expert report establishes, in my judgment, that there would not be any effective protection for a minority clan woman returning to her husband as protection is derived from the protective reach of being a member of a majority clan. Whilst clan militia may not be actively engaged in conflict in Mogadishu (see MOJ and others), the deterrent effect of majority clan "muscle" but, more importantly, the deterrent impact of the Diya system will not be available to the appellant and so will increase the risk to her as a minority clan woman.
39. In addition to the background material to which I have referred, Mr Hodgetts also sought to pray in aid the likely circumstance in which the appellant would find herself with her husband in Mogadishu. I recognise, of course, the "economic boom" noted in MOJ and Others that has occurred in Mogadishu (see [344] et seq). Mr Hodgetts did not strenuously seek to argue that the appellant's husband would not be working on her return. I see no reason to conclude that he would not. Someone had paid for the appellant to travel to the UK: it was likely to be her husband. Mr Hodgetts did not seek to argue that the situation of the appellant on return would be such that her husband and she would be in such dire financial straits that they would not be able to support themselves and would be required to live in an IDP camp. Nevertheless, I accept that the likely position of the appellant and her husband is that as, minority clan members, they are may both have to work in order to support themselves. I accept that the appellant would not be able to obtain any financial support from her family in the UK. I accept the evidence of her sister (not actively challenged before me) that she would not be able to provide financial support. With the economic boom has also come increased costs of living in Mogadishu in particular of accommodation (see "Mogadishu's new generation of 'rent' displaced" dated 4 September 2013). I accept that there is a real risk that the appellant and her husband would be required to live in a less affluent area of Mogadishu and that, as Mr Hodgetts submitted, the appellant may be required to travel in and through Mogadishu either to work or in order to visit markets etc as part of her domestic responsibilities. Further, the risk in Mogadishu to the appellant is present wherever they live. It would, in any event, be wholly unrealistic to conceive that the appellant would remain closeted in their home; let alone that she should be expected to and not engage in everyday activities in a city where the risk of sexual violence is generally prevalent. She would be exposed to the risk of sexual violence which the background material identifies in respect of minority clan women in Mogadishu from individuals and Government and security personnel. Their actions are likely to be carried out with impunity.
40. I do not accept Mr Richards' submission that it is a matter of commonsense that a single woman would be at greater risk than a married woman in Mogadishu. The background material does not support such a view. The risk is to women and, in particular, women from minority clans. Neither her husband nor her minority clan would have protective or deterrent affect on those individuals or government or other officials and peacekeepers who would perpetrate attacks of sexual violence on women such as the appellant.
41. The appellant must establish that there is a "real risk" to her of sexual violence which amounts to persecution or "serious harm" for the purposes of the Refugee Convention and Art 3 of the ECHR respectively. It is not suggested (and nor could it be properly) that the risk of sexual violence, if established, does not amount to persecution or serious harm. A real risk is one which is not a fanciful risk (see Hariri v SSHD [2003] EWCA Civ 807 at [5] per Laws LJ and R v SSHD ex p Adan, Subaskaran and Aitsguer [1999] Imm AR 521 at p.537).
42. Bearing in mind the findings I have made above, I accept the substance of Mr Hodgetts submissions which I have set out at para 13 above based upon the material to which I have been referred. I find: (i) The risk of sexual violence to women in Somalia (including Mogadishu) is widespread and committed with impunity; (ii) That risk arises both from individuals and also from government and security forces and Amisom troops; (iii) the risk of sexual violence is greater in IDP camps but is not restricted to it. There is still a real risk outside an IDP camp; (iv) The risk is greater to women who are members of a minority clan; (v) Protection may be available where a woman has a 'male network' of clan protection but that is limited to where she (or her husband) is from a majority clan. That is because effective clan protection comes from the existence of majority clan muscle or the ability to invoke "diya" (blood money) which is restricted, in practice, to majority clans; (vi) Whilst I accept that the appellant's husband would work, the appellant and her husband are likely to have to live in a less affluent area of Mogadishu. There would be no family support from the UK. There is a real risk that the appellant will be exposed to the risk of sexual violence as a result of her everyday life in Mogadishu (which may including travelling to work); (vii) The Somali state is unable to provide a sufficiency of protection against sexual violence by individual or government or other security personnel who commit acts of sexual violence; (viii) There is no suggestion before me that the appellant could reasonably be expected to internally relocate within Somalia.
43. Having taken into account all the background evidence, and not merely that which I have set out above, I find that there is a real risk that the appellant will be subject to sexual violence amounting to persecution and a breach of Art 3 on return to Mogadishu in the light of all her circumstances as a returning women from a minority clan with only a husband in Mogadishu.
44. It is not suggested that the appellant would not, in those circumstances, fall within a PSG (see para 8 above). For these reasons, I am satisfied that the appellant's return to Mogadishu would breach the Refugee Convention and Art 3 of the ECHR.
Decision
45. The First-tier Tribunal's decision to dismiss the appellant's appeal under the Refugee Convention and Art 3 of the ECHR involved the making of an error of law. That decision was set aside following the hearing before the UT on 31 March 2016.
46. I now remake that decision allowing the appellant's appeal under the Refugee Convention and Art 3 of the ECHR.
47. The First-tier Tribunal's decision to dismiss the appellant's appeal on humanitarian protection grounds and under Art 8 stand.

Signed

A Grubb
Judge of the Upper Tribunal