Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02682/2013

THE IMMIGRATION ACTS

Heard at : Laganside Courts
Determination Promulgated
On : 20th August 2013

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Before

Upper Tribunal Judge McKee

Between

khalid weli ahmed sharif

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Buster Cox of the Northern Ireland Law Centre
For the Respondent: Mrs Margaret O'Brien of the Specialist Appeals Team

DETERMINATION AND REASONS

1. The appellant arrived in Northern Ireland in June last year and subsequently claimed asylum. It is not disputed that he was 17 years old at that time or that he hails from Somalia. But the respondent did not accept that he belongs to the Ashraf minority or that he was brought up in the village of Maduro in the Lower Shabelle region. The claim was rejected on 6th March 2013, but when the appeal came before the First-tier Tribunal on 9th May, Judge Grimes did accept that the appellant is an Ashraf from the Lower Shabelle. She also accepted ~ and it was not specifically disbelieved by the respondent ~ that the appellant's father had been a religious teacher, giving lessons in the Holy Qur'an from a room adjacent to the family home, from which he was abducted in April 2011 by members of Al Shabaab. They preferred a different version of Islam to the one which he was expounding.

2. But the appellant had experienced no problems from Al Shabaab himself. After the abduction, he remained at home for three months, during which time the family were visited by an aunt from Mogadishu, on the occasion of the birth of the appellant's younger sister. The appellant then travelled to Mogadishu and stayed with his aunt for a month, while arrangements were put in place for him to leave Somalia. Thereafter the appellant went back to the village of Maduro and resumed attendance at the local school for three months, until the aunt came to fetch him to Mogadishu, where the arrangements had finally been completed. The appellant stayed in Mogadishu for two weeks before flying out with the agent.

3. Far from recruiting the appellant into their ranks, Al Shabaab, by his own account, showed no interest in the appellant while he was in his home village. Judge Grimes was prepared to accept that Al Shabaab were still in control of the appellant's village, but because the appellant had continued to live there from when his father was abducted in April 2011 until his departure from Mogadishu in June 2012 ~ save for a month in Mogadishu in the summer of 2011 and a further two weeks just before his departure ~ the judge was not satisfied that he would be at real risk of persecution by Al Shabaab on return to his home village.

4. As for the appellant's sojourn in Mogadishu, Judge Grimes noted that his later description of conditions in that city differed considerably from his earlier one. The latter described the area where his aunt lived as quiet and peaceful, under government control, whereas the former described the whole place as wracked by fighting, which made it unsafe for him to leave the house. Judge Grimes thought the earlier description more likely to be true, and that having an aunt and indeed uncles in Mogadishu, the appellant could safely relocate to that city. She took account of the country guidance in AMM & ors [2011] UKUT 445 (IAC), distinguishing the appellant from the large class of returnees for whom there would still be a real risk of Article 15(c) harm in that city.

5. In respect of the appellant's membership of the Ashraf minority, Judge Grimes noted that he had not claimed to have suffered any persecution at all as a result of this, and that he had travelled twice between his home area and Mogadishu, as well as travelling to the airport, without any difficulty. Despite the country guidance in NM [2005] UKAIT 76, there was insufficient evidence before her, said the judge, to support the assertion that there was a current risk of persecution for members of the Ashraf minority in the Lower Shabelle or elsewhere.

6. Turning finally to the human rights consequences of return, Judge Grimes noted that while, according to AMM, the armed conflict in Mogadishu did not pose a real risk of Article 3 harm, there could be such a risk to vulnerable individuals. But she did not think that the appellant laboured under any particular vulnerability. Although he had not traced his family members in Somalia through the Red Cross, he had stayed with his aunt on two occasions in Mogadishu, and in any event no removal action was to be taken against him until he reached his 18th birthday, which was not for another two months. In respect of Article 8, Judge Grimes accepted that the appellant had established a private life in Northern Ireland through his studies and his sporting activities, and even family life with the foster carers with whom he had been staying since December 2012. But as he was not at risk in Somalia, where he had close relatives, she concluded that removal there would not be disproportionate.

7. Every aspect of the judge's reasoning was challenged in the application made by the Law Centre (NI) for leave to appeal to the Upper Tribunal, with the addition, in reliance on KA (Afghanistan) [2012] EWCA Civ 1014 (which was handed down some two months after the promulgation of the instant case), of failure by the Secretary of State to endeavour to trace the appellant's family members in Somalia. When the appeal came before me, leave having been given by Designated Judge French on all the grounds, I had the benefit of very lucid and persuasive submissions from Mr Cox, which were ably rebutted by Mrs O'Brien. As Judge Grimes' determination is very well structured, with each aspect of the case being clearly demarcated and clear reasons being given, I shall follow the pattern outlined above in addressing Mr Cox's criticisms.

8. Considering first the risk from Al Shabaab, I think the judge was perfectly entitled to take the very long period which the appellant spent in his village after the abduction of his father, without experiencing any problems at all from Al Shabaab, as indicating that he was not reasonably likely to be persecuted by them on return to that village, on the assumption that they are still in control of that district (which the judge was prepared to accept). Mr Cox insists that, given the appetite of Al Shabaab for recruiting young men, it should not be assumed that they would have no interest in the appellant in the future. But the appellant was already old enough to be recruited into their ranks while he was living in the village, and it was not irrational for the judge to infer, from the lack of previous interest, the absence of a real risk in the future.

9. In any event, the judge found that the appellant could relocate safely to Mogadishu. Mr Cox argues that internal relocation is ruled out by AMM, but at paragraphs 23-25 of her determination Judge Grimes explains why the appellant comes within the class of persons recognised by the panel as being able to return to Mogadishu without an Article 15(c) risk. I think her reasoning is adequate, but in any event it must be acknowledged that the situation in Mogadishu is very different from what it was when the panel was considering the country background evidence which resulted in the guidance given in AMM. As already mentioned at paragraph 6 above, the panel refer to "the armed conflict in Mogadishu." There is no longer any armed conflict. Al Shabaab have been driven out of the city and its environs, and the Government is in total control.

10. In finding that the appellant is not at risk on account of his Ashraf ethnicity, Judge Grimes at first blush came closer to making an error of law. She considered there to be "insufficient evidence" before her that the Ashraf folk were currently at risk in Somalia, but she did not cite any country background material or expert opinion to support that conclusion, which appears to be based solely on the appellant's own evidence of what befell him in Somalia. There was nothing, insists Mr Cox, to justify departure from the country guidance in NM, which clearly states that anyone found to be a member of the Ashraf minority is at risk of persecution and therefore entitled to recognition as a refugee.

11. Practice Direction 12.2 requires country guidance to be treated as authoritative in any subsequent appeal, so far as that appeal "depends upon the same or similar evidence." The evidence from the appellant was very different from that before the AIT in NM. He may have been still a minor when he left Somalia, but he was old enough know if his family had experienced any problems because of their Ashraf lineage. Far from having any problems, the appellant's father would appear to have been well-respected in the village, attracting enough students to his divinity classes to provoke the anger of Al Shabaab, who wished to impose their own Salafist/ Wahabi version of Islam on the population. When the panel in NM was taking evidence, the problems in Somalia mostly stemmed from the struggles between clan-based warlords, with minority groups falling prey to the depredations of armed militias. Subsequently, all that changed. Tired of this internecine clan rivalry, the population largely welcomed the Union of Islamic Courts, despite their imposition of Sharia law. Their dominance was short-lived, thanks to military intervention by Ethiopia, but Al Shabaab emerged to carry on a similar programme. Now, however, the forces of the legitimate government, with the support of the AMISOM contingents, have established government control over the greater part of Somalia. All of this is perfectly consistent with the appellant's being unaware of any Ashraf-related problem for his family. Country guidance is not a straight-jacket, and while Judge Grimes may have expressed herself in terms which were too wide-ranging, she was entitled to find that there was no risk to the appellant, either in his home area or in Mogadishu, because he belonged to the Ashraf folk.

12. The one error of law which I agree with Mr Cox does occur in the determination is where Judge Grimes considers whether returning to Mogadishu will pose an Article 3, as opposed to an Article 15(c), risk to the appellant. She takes comfort from the fact that the appellant will not be removed until after his 18th birthday, which will be in two months' time, but Mr Cox rightly points that for Article 3, as well as for asylum, the hypothetical question which must be asked is whether, as at the date of the hearing, the appellant would be at risk if he were back in his own country.

13. The error is not a material one, however. The appellant had only recently been staying with his aunt in Mogadishu, and there were also uncles living in the city. Although he had apparently been unable to contact them, it was not unreasonable to suppose that he would be able to find them once he was back. In any event, this error would not constitute a basis for granting the appellant international protection at the present time, when he is no longer a minor. There is no 'corrective principle' in play, as explained in EU & ors (Afghanistan) [2013] EWCA Civ 32. That case also provides a complete answer to the complaint in the grounds, citing KA (Afghanistan) [2012] EWCA Civ 1014, that the Secretary of State did not carry out her duty to endeavour to trace the appellant's family members. The appellant cannot derive a benefit from that failure now, if he is not at risk on return to his own country.

14. No issue has been taken, quite rightly, with the judge's treatment of the Article 8 aspect of the appeal. The upshot is that, although a very persuasive case was advanced by Mr Cox, no material error of law has been established, and so the decision of the First-tier Tribunal must stand.

DECISION

The appeal is dismissed.

Richard McKee
Judge of the Upper Tribunal
4th September 2013