Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/02070/2013

THE IMMIGRATION ACTS

Heard at Laganside Courts Centre, Belfast
Determination Promulgated
On 28 March 2014
On 17 April 2014

Before

The President, The Hon. Mr Justice McCloskey

Between

ABDI ALI IYOW
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

Appellant: Mr Martin Brennan, Solicitor.
Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of Somalia, born on 1st January 1980. He has been resident in the United Kingdom since November 2012. His appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the "Secretary of State"), dated 12th February 2013, whereby his claims for international protection and under Article 8 ECHR were refused. His ensuing appeal to the First-tier Tribunal (the "FtT") was dismissed in a determination dated 15th June 2013.

2. The grant of permission to appeal to the Upper Tribunal adverted to the FtT's finding that the Appellant is a member of the Ashraf minority clan and considered it arguable that the findings that the Appellant " ?.. can safely return to Mogadishu airport and relocate to Mogadishu or, alternatively, travel safely to his home area of Jowhar is not in accordance with the country guidance case ?.. and/or is not supported by the background evidence of current conditions in Somalia." The Secretary of State's Rule 24 Response, supporting the decision of the FtT, embodies two noteworthy contentions. The first is that the Judge gave adequate reasons for departing from the country guidance decision of the Upper Tribunal in AMM and Others - v - Secretary of State for the Home Department [2011] UKUT 00445 (IAC). The second is that the Judge had ample justification for finding that the Appellant had been untruthful, having regard to the various inconsistencies and discrepancies identified in the Appellant's story.

3. When interviewed in connection with his claims for protection, the Applicant stated that he was the father of four children, with ages ranging from 3 - 7 years and he had last seen his spouse in Somalia on 24th June 2012. They lived in Jowhar. The gist of his claim for asylum is encapsulated in the following answer:

"I am afraid of Al Shabab (hereinafter "AS"). Afraid they would kill (me). They arrested me, when war broke out I escaped."

He described himself as a Muslim and a member of the Ashraf clan. He asserted that his uncle had been killed. He described an incident at around the same time when two armed men threatened to kill him and he was, fortuitously, rescued by the Government forces some minutes later. He dated this incident 30th October 2012. When asked about the Government forces, he stated:

"They are the ones who caused me to leave. They are the ones who raped my cousin."

The Appellant also described an earlier incident, evidently months beforehand, involving his arrest by AS members who had taken control of his area since 2009.

4. Developing his claim and account, the Appellant asserted that he was in fear of AS. He claimed that AS had a significant presence in Mogadishu, which was not a safe place in consequences. He added that in 2004 members of a militia group linked to a major can, Abgal, had visited his home, attacked and injured him and raped his wife. The same clan also killed his father, in 1993. He described his clan (Ashraf) as part of the Bendiri group. He also appeared to state that the Ashraf clan has two sub clans
and that he is a member of one of these, Hassan Sarmen.

5. The refusal decision of the Secretary of State is susceptible to the following analysis:

(a) The Appellant's claim to be from Jowhar was accepted. However, his claim to be a member of the Ashraf clan was disbelieved. In consequence, his claim concerning the attack and rape by Abgal clan members in 2004 was rejected.

(b) His assertion that he had been detained by AS members on 24th June 2012 and his description of his escape were considered unworthy of belief.

(c) His story was considered to be further undermined by a twin failure to attempt any contact with his family in Jowhar during the five month period he claimed to have spent in Mogadishu from June 2012 and his failure to contact his aunt in Mogadishu at the same time.

(d) The issue of risk on return was then examined in some detail. This involved consideration of various pieces of information from sundry sources. This gave rise to an assessment that the Appellant has clan and family connections in an area not controlled by AS; that he could reasonably return to this area; that living conditions in central and southern Somalia had improved sufficiently to overtake the "N situation" addressed in the AMM decision; and that even if he were a member of the Ashraf clan this status alone would not expose him to a risk of proscribed treatment.

This part of the decision contains the following key passage:

"[57] In summary, in view of the absence of [AS] in Mogadishu, at any point of your route of return or, significantly, in your home area of Jowhar, it is not accepted that you are, in fact, at real risk on return where you to return to your home area. Similarly, given the improvement of the living conditions in central and southern Somalia, coupled with the fact that your claimed status as a minority clan member does not place you at real risk alone even if it were to be accepted, it is considered that your return to Jowhar does not place you at real risk of a breach of Article 3 or engage Article 15(c) of the Qualification Directive."

6. The decision maker also considered the alternative of internal relocation to Mogadishu, stating:

"[AS] may still have a hidden presence in Mogadishu but they are no longer in control. It is not however considered that you have any political profile that would bring you to their attention. It is therefore considered that your account does not demonstrate a barrier to relocation to Mogadishu if required ?.. There is a significant Ashraf community in Mogadishu ?.. the clan system in Somalia remains a significant means of support for returnees ?. [all combining] ?.. to render your relocation to Mogadishu viable."

Drawing on certain pieces of information, the decision maker also stated:

"It is concluded that the 'durability' test outlined by AMM has been met in respect of Mogadishu ?.. The above objective information, which post dates the promulgation of AMM clearly outlines the fact that Mogadishu is entirely controlled by the Government's troops and that the security of Mogadishu has been consolidated to such an extent that Somalia's first formal parliament in more than 20 years was sworn in ?. Your return to Mogadishu does not place you at real risk as a result of the current level of fighting."

The refusal letter was also based on a perceived "emergence of peace ? economic boom ? [and] ? new cycle of peace and prosperity" in Mogadishu.

7. Duly analysed, the decision of the FtT was modelled substantially on the Secretary of State's refusal decision. The Judge began by disagreeing with the Secretary of State's finding on the issue of clan membership, holding that the Appellant is a member of the Ashraf minority clan, as claimed by him. Next, the Judge set himself the task of examining the credibility of core of the Appellant's story. Having done so, he stated:

"I have come to the view that the general credibility of the Appellant has not been established. I find that the Appellant has been essentially untruthful about the events which he has sought to describe in Somalia. His story is flawed. The inconsistencies, the implausibilities and deliberate untruths and the question marks all add up in their cumulative effect to a position where I am unable to accept any part of the evidence of the Appellant as being true insofar as it relates to the events which he described in Somalia which form the basis of his claim for international protection."

The Judge then undertook the exercise of elaborating on this relatively withering condemnation of the Appellant's credibility. He proceeded to explain at some length his reasons for rejecting the Appellant's assertions in relation to his detention by AS and subsequent escape; the Appellant's explanation of why he remained mainly in hiding during the following months, given the absence of any evidence that AS knew of his identity; his professed fear of the Government forces as well as AS, which the Judge considered incongruous; his story about the armed threat to his life some months later, which the Judge found intrinsically implausible; and certain perceived discrepancies relating to the issue of the Appellant's contact with his aunt and family in Somalia following departure.

8. Next, the Judge assessed the updated situation in Somalia. His assessment is ascertainable from the following passages:

"Somalia is a different place now than it was when the country guidance case of AMM ?. was decided ?.

The situation in Somalia has now dramatically improved ?..

The preponderance of evidence is that those people being targeted [by AS] at present are the representatives of the present Government ? in general [AS] does not deliberately target civilians and the risks involved in living in Mogadishu are basically a question of being at the wrong place at the wrong time ?

[AS] no longer exists as an organised fighting force but has continued its warfare based upon guerrilla attacks upon the identified groupings and persons [excluding the Appellant] .. the Government exercises control ? in Mogadishu and seeks to enforce the law and protect individuals ?.

The preponderance of evidence does indicate that there is no longer a degree of risk, absent the famine and absent the open warfare, where it could be said that the citizens of Mogadishu or Shabelle are entitled to humanitarian protection."

The Judge then recorded his rejection of the Appellant's claim that he is at risk from AS, on the basis of his adverse credibility findings. He continued:

"Even if his account were true ?.. Mogadishu and Shabelle are secure in the hands of Government forces and I find that the Appellant is not a particular target ?.

I find that the Appellant will not be at risk by virtue of his being a member of the Ashraf minority clan."

Finally, the Judge found specifically that access from Mogadishu Airport to the city remains safe. He further found that the Appellant could travel safely from Mogadishu to his home town.

9. I juxtapose the grant of permission to appeal with the grounds of appeal seeking such permission. In short, the Appellant challenges the Judge's findings of no real risk on return. This challenge is based on the UNHCR Guidelines, published in 2010 and updated in March 2012. It is contended on behalf of the Appellant that, accordingly, the Judge's finding that the Appellant could safely relocate to Mogadishu is unsustainable. In my view, this contention is untenable as it overlooks the simple factual reality that this is not an internal relocation case in the conventional sense. Rather, "internal relocation" for this Appellant will simply mean proceeding from Mogadishu Airport to Mogadishu city. The evidence establishes that it is safe to do so and there is no identifiable error of law in the Judge's premise to this effect. This aspect of the appeal has no merit or substance in consequence.

10. Mr Brennen, in seeking to challenge the Judge's findings relating to risk upon return to Somalia, laid emphasis upon the following aspects of the country evidence:

(a) The suggestion in the Home Office Operational Guidance Note for Somalia, of October 2012, that members of the Asharaf and kindred clans "? may be targeted by [AS] partly because [AS] does not recognise their religious status and partly because they oppose the Shariff Hassan who was the driving force in the 2008 Dijbouti Agreement with [the President]." [Paragraph 3.9.6].

(b) The claim in the UNCHR Somalia Report (May 2010) that members of the minority clans in southern and central Somalia "? are vulnerable as they lack the military capabilities to defend themselves and do not generally benefit from the protection of war lords and militias of the large clan [and] are therefore exposed to an increased risk of rape, attack, abduction and having their real and personal property confiscated in southern and central Somalia's lawless atmosphere."

(c) The passage in the same report relating to reports of increasing forcible recruitment of young Somali males in southern and central Somalia.

(d) Various passages in the Danish Immigration Service Report of May 2013.

The Danish Report records that the activities of AS include targeted lethal attacks on AS defectors. There is decreasing support for AS among the clans. Arrests by Government forces of suspected AS members and affiliates are concentrated on younger people, occur indiscriminately and usually result in detention for less than one day. Generally, the UN threat and risk levels relating to Mogadishu have reduced, albeit a significant risk in many areas endures. The main task of the Government forces is to keep AS out of the city, where a front line and conventional warfare no longer feature. AS still has the capacity to undertake specifically targeted attacks. The report describes a diminishing graph of "small scale hit and run attacks ? throwing hand grenades and assassinating people". AS has no military capacity to attack Jowhar in Middle Shabelle. Large scale military operations are now beyond its capacity. Mogadishu Airport is, essentially (though no absolutely), secure.

11. One of the two basic grounds of appeal entails a challenge to the Judge's findings adverse to the Appellant's credibility. It is unclear whether this ground is embraced by the grant of permission to appeal. However, I shall give the Appellant the benefit of the doubt. It was not disputed by Mr Brennen that the threshold for intervention in this respect is irrationality. This is a self evidently elevated threshold. I am satisfied that it is not overcome. The Judge's several findings relating to the plausibility and consistency of the Appellant's core story plainly lay within the range of findings reasonably open to him, having regard to the evidence. Furthermore, these findings are clearly articulated and adequately reasoned. This ground of appeal must fail accordingly.

12. Thus the spotlight switches to the issue of risk on return and, specifically, the Judge's assessment of the evolving conditions in southern Somalia and Mogadishu. The context in which this issue must be considered is shaped by the fact that, having regard to the Judge's findings, the Appellant's only relevant characteristics are, in my estimation, twofold. First, he is a member of the Ashraf clan. Second, he is a member of such clan who has departed Mogadishu and would be returning approximately two years later.

13. The decision in AMM must be considered at this juncture. The first purpose of this exercise is to ascertain whether, on paper and in principle, the Appellant belongs to any of the risk groups or categories identified therein. In AMM, the Upper Tribunal, having duly acknowledged certain changes and improvements in conditions in Mogadishu, held that there is a general Article 15(c) risk to the great majority of those returning there from the United Kingdom: See [350] and [357] - [358]. Certain exceptions were recognised: see [357]. However it was not suggested - in the decision letter, in the hearing at first instance or in argument before this Tribunal - that any of these applies to the Appellant.

14. Stated succinctly, the Appellant, without having to demonstrate any special characteristics, belongs to the general risk category identified in AMM. In making its decision, the FtT was clearly mindful of paragraph [363] of AMM, which emphasised that in future cases where the evidence was not the same as or similar to that considered by the Upper Tribunal, Judges -

"are not required to regard our findings as authoritative ?..

As time passes, however, it may well be that judicial fact finders are able to conclude that the necessary element of durability has been satisfied. How, if at all, that impacts on the assessment of risk on return will, of course, depend on all the other evidence."

On one view, it is difficult to identify any tangible error of law in the determination of the FtT in the present case. However, it is necessary to adopt a somewhat more panoramic view. I presided recently in the hearing of several specially selected conjoined appeals to the Upper Tribunal [MOJ and Others v SOS]. This hearing was specifically convened and designed for the purpose of considering whether a new Somalia/Mogadishu County Guidance decision should be promulgated. Judgment has been reserved. I am conscious of the large quantities of evidence, both expert and otherwise, which were assembled in those appeals. Much of this evidence spans a period which encompasses the date when the impugned decision was made in the present case, 12th February 2013. It is clear that only some of this evidence was considered by the decision maker. The proposition that there was a duty to consider, assimilate and rationalise all available material evidence seems to me incontestable. The decision letter does not satisfy this standard. Furthermore, it does not adequately engage with the key Article 15(c) element of the decision in AMM. These failures are inter-related. Either singly or in combination, they impel to the view that the refusal decision giving rise to the appeal to the FtT was not in accordance with the law. In my judgment, a departure from the Article 15(c) element of the decision in AMM would, in order to be sustainable, require a more detailed and sophisticated exercise, addressing and evaluating all relevant available evidence, than that carried out by the decision maker.

15. It is not easy to find fault with the decision of the FtT, which was crafted with evident thought and care. However, it was, of necessity, dependent upon the depth and quality underlying decision of the Respondent, both being based on the same evidence. I consider that the additional evidence on which the Appellant relied at first instance was far from persuasive. However, this, too, suffered from the same frailties which I have identified in the refusal decision.

16. Based on this analysis, I conclude that the FtT should properly have decided that the Secretary of State's decision was not in accordance with the law. From this it follows that the decision of the FtT is infected by an error of law the materiality whereof is beyond plausible dispute.

DECISION AND DIRECTIONS

17. Giving effect to the above:

(a) I set aside the decision of the FtT.

(b) I remit the case to a differently constituted FtT for the purpose of remaking the decision.

(c) I direct that the remaking hearing should await promulgation of the decision of the Upper Tribunal in the conjoined cases to which I have referred above, MOJ and Others - v - Secretary of State for the Home Department (heard in late February 2014).

Signed: THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 14 April 2014