AA/05204/2012

• Status of case: Unreported
• Promulgation date: 24 Jun 2013
• Last updated on: 26 Nov 2013

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05204/2012

THE IMMIGRATION ACTS

Heard at Field House
Date sent
On 5 June 2013
On 24 June 2013



Before
UPPER TRIBUNAL JUDGE JORDAN

Between

AJM
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R. Toal, Counsel instructed by Sultan LLoyd, Solicitors
For the Respondent: Mr S. Walker, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction and immigration history

1. The appellant is a citizen of Somalia who was born on 2 October 1977. He is now 35 years old. He appeals against the determination of First-tier Tribunal Judge Pirotta promulgated on 27 June 2012 dismissing his appeal against the decision of the Secretary of State made on 26 January 2012 refusing to grant him a further leave to remain.

2. The appellant arrived in the United Kingdom on 30 June 1999, now some 14 years ago, and claimed asylum. He was granted exceptional leave to remain until 19 June 2004. At that time he would have been permitted to extend his leave to remain and, as a matter of course, this would have been provided to him in the form of indefinite leave to remain. However, he failed to make an application until 2 February 2005 by which time his application was out of time. His application was refused by decision made on 26 January 2012, after a lapse of time of some seven years. The application was renewed on 8 February 2008 and refused by a decision made on 26 January 2012 and another on 1 May 2012; removal directions were made on 3 May 2012. This had involved a further delay. The appellant appealed on 17 May 2012. It was this appeal that came before Judge Pirotta.

3. As a result of the somewhat singular immigration history, there are two refusal letters. In the letter of 26 January 2012 the Secretary of State placed reliance upon the appellant's history of offending. She noted that the appellant had five convictions for seven offences in the United Kingdom. The information in the letter is somewhat sparse and it has been supplemented by a print-out of the appellant's PNC record:
a. On 13 June 2002 under the Public Order Act 1986 the appellant was accused of using disorderly behaviour or threatening, abusive, insulting words for which he was given a formal caution on 14 June 2002, now some 11 years ago.
b. For an offence of destruction of property, the appellant was convicted on 6 June 2007 for which he received a fine of £50 and a compensation order of £15.
c. For an offence of assault occasioning actual bodily harm the appellant was convicted on 13 July 2007 and sentenced to 4 months imprisonment wholly suspended. He was ordered to do unpaid work and made the subject of a supervision order for a period of 12 months and ordered to pay compensation of £250. He breached the suspended sentence by not complying with its conditions during a period of one week in October 2007. The effect was that 16 days of his prison sentence was activated but the order was directed to continue. There was a further breach for which the appellant was convicted on 9 September 2008 which resulted in the activation of a further three months of the sentence.
d. The later activation of the sentence is associated with an offence of battery which took place on 22 February 2008 for which he was sentenced to a further period of imprisonment of four months thus making a total sentence of seven months. It is to be noted that these offences took place some six and five years ago respectively. Combined, the 2007/2008 offences represent the most serious examples of the appellant’s criminal offending.
e. On 15 October 2009 for an offence of being drunk and disorderly and battery, his sentence was postponed and a community order was made.
f. The appellant was cautioned for an affray on 15 February 2011; the disposal of the offence by way of a caution being the most reliable guide to the seriousness of the offending rather than the categorisation of the offence itself, that is, an affray.


The respondent’s decision

4. The Secretary of State took the view that the appellant's criminal record did not justify allowing him to remain in the United Kingdom. The offences may be summarised in this way: two matters which did not result in a formal prosecution or conviction but, in each case, a caution; two offences of loutish drunken behaviour which resulted in minor non-custodial sentences and two which did. Whilst a pattern of sometimes quite trivial offending is properly assessed as disturbing and capable of creating a public interest in removal, in the appellant’s case the two matters which have a significant impact on removal are the offences of ABH meriting 4 months imprisonment and the subsequent battery (no actual bodily harm) meriting a similar sentence almost certainly not because it was escalating violence but because, at that time at least, the appellant whilst under sanction to be of good behaviour, seemed incapable of controlling himself (and probably his drinking).

The claim

5. In his original application, the appellant claimed that he came from the Dir tribe, a minority clan with no home-land to which he could safely return. He said his mother was an Isaaq. He gave an account of the family's move to Burao and then to Baidhaba but the situation was both dangerous and hostile as a result of fighting in the civil war between majority tribesman. He claimed that he escaped to Mogadishu. (This account should not be taken as accurate since he subsequently accepted that he had been born and brought up in Mogadishu.) He described himself as having attended school until 1990, when he would have been 13 years old and having a wife in Somalia and five siblings. Subsequently, however, he modified the claim to assert that he was a member of a minority clan.

6. In the evidence that he submitted to the Judge, he denied that he was responsible for the late submission of his application for indefinite leave to remain but admitted that his life had gone into a downward spiral and that his offending was drink-related. Although he claimed that he had been sober ever since, there is no evidence from a clinician of his having undergone any treatment for his excessive drinking and there is the worrying fact that drink had led him to acts of violence and the latest offence of an affray which took place on 15 February 2011 might well be a manifestation of his old problem. A letter from a probation officer dated 15 February 2012 recorded that the appellant had been sober for 12 months indicating that the affray was the last example of drink-fuelled violence. There is no evidence of further offending or drink-related violence since February 2011, an encouraging gap of 2 years.

7. He blamed the Secretary of State for his offending but I attach little weight to that bare assertion. I agree, however, that the appellant has been in a state of limbo for many years and that a resolution of his application in his favour is likely to have been a positive, rather than a negative, influence in his life.

8. It was a significant part of his claim that he had had no contact with members of his family in Somalia since he left in 1999. He had, however, originally lived with his sister and it was a telling remark that, at the hearing before me on 5 June 2013, he told me that he had spoken to his sister on the day of the hearing. He mentioned before the Judge on 25 June 2012 that his brother and sister and her children were British citizens. He then described himself as being the black sheep of the family because of his consumption of alcohol, frowned upon by his Muslim family members. He described that he had lived in his own flat but his brother lived nearby whom he saw daily and with whom he regularly spoke. His relationship with his sister, however, who lived in London, was somewhat different. He had then claimed he had seen her last a month before and saw her only every six or seven months. He claimed that he had no contact with any of his family in Somalia but, importantly, his sister knew where they all were in Mogadishu. He claimed that he did not know how his family was supported but his father was a teacher. Neither his brother nor his sister supported his asylum claim. Neither had made witness statements. He attributed this to his drinking and relied upon it as a reason why his family would offer him no support on return to Somalia.

The First-tier Tribunal Judge’s findings

9. In her findings on credibility, Judge Pirotta did not accept that he came from a minority clan and had provided no direct evidence that he had ever experienced persecution was in Somalia. His father was a teacher and the family remained in Mogadishu. They had survived the entire time the appellant had been in the United Kingdom. There was no evidence any of them suffered any form of persecution. She concluded that it was reasonable for the appellant to return to live in Mogadishu with his family.

10. The Judge, having considered the record of the appellant’s offending, considered that the appellant had been less than candid about his history of drinking. She rejected his evidence that there had been no contact with his family in Somalia since he left in 1999 because of his evidence that his sister was fully aware of the family’s presence in Somalia and had simply chosen not to contact them. In addition, the Judge was not satisfied that he had given a truthful account of the presence of other family members in the United Kingdom.

11. When dealing with the issue of proportionality, however, the Judge referred to the fact that his application for further leave to remain had taken some seven years before it elicited a response from the Secretary of State. She said in terms that the respondent had provided no explanation for the delay. In contrast, although the appellant had delayed making his application for an extension of shortly after his original exceptional leave to remain had expired in June 2004, the delay until February 2005 was not a delay on his part of any consequence. In particular, the Judge noted that, although the appellant had been imprisoned for a few months, these periods could not justify any delay on the part of the Secretary of State.

12. The Judge concluded that the appellant had not demonstrated the existence of any social, family or economic ties in the United Kingdom or that he had acted to his detriment during the period of delay brought about by the failure of the Secretary of State to deal with his application. She went on to describe the delay as "not acceptable and cannot be excused" but rejected the suggestion that he had been disadvantaged by the uncertainty of not knowing the result. The Judge made the understandable point that, as far as the asylum claim was concerned, the appellant could have had no illusions about the prospect of success because he had put forward a claim that was without merit. Whilst that comment holds good for the asylum claim, it does not assist the respondent in failing to handle the claim for further leave to remain, a claim which Mr Walker conceded would have resulted in the grant of indefinite leave to remain in 2005 had it been processed then.

13. On the basis of these findings the Judge accepted that his misbehaviour was a consequence of excessive drinking and, in paragraph 49, appears to accept that he no longer drinks. She used this as a reason why he could re-establish himself in Somalia where he would have the physical and moral support of his family. In particular, she identified Mogadishu as a place where he could reasonably expect to return.

14. The appellant appealed against the decision of Judge Pirotta relying, in particular, upon the intensity of the violence in Mogadishu which had been identified by the Court in Strasbourg in Sufi and Elmi v United Kingdom (8319/07 and 11449/07). In its decision, the European Court of Human Rights spoke of everyone being at risk in Mogadishu save, possibly, those who were "exceptionally well connected to ‘powerful actors’”. Further, a returnee with no recent experience of living in Somalia would be at real risk of Article 3 ill-treatment in an Al-Shabbab controlled area. In addition, those returning to camps for the displaced would be at risk of serious harm on account of the dire humanitarian conditions there.

15. The appellant, according to the findings of fact of the Judge, would not be returning to an Al-Shabbab area and would not find himself in a camp for displaced persons.

Country Guidance

16. In AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC), the Tribunal summarised its assessment of risk in these terms, selectively extracted from the italic words:

9) On the assumption that Al-Shabbab’s likely behaviour towards those who transgress its rules is as found in this determination, the position is as “extreme” as the factual basis in RT (Zimbabwe) [2010] EWCA Civ 1285. In the light of RT, a person from an Al-Shabbab area who can show they do not genuinely adhere to Al-Shabbab’s ethos will have a good claim to Refugee Convention protection, once outside Somalia (subject to internal relocation and exclusion clause issues), regardless of whether the person could and would “play the game”, by adhering to Al-Shabbab’s rules. As can be seen from a comparison with Sufi & Elmi, the effect of RT is, accordingly, to take the Refugee Convention beyond the comparable ambit of Article 3 ECHR protection.

15) In assessing the effect of an appellant’s lies (whether to the Secretary of State or a judicial fact-finder), it is unnecessary to construct a prescribed set of steps from the judgments of the Supreme Court in MA (Somalia) [2010] UKSC 49, particularly if they might lead to a “mechanistic” rather than a holistic approach. The significance or “negative pull” of the lie will possibly depend not only on the strength of the background evidence but on whether the lie – looked at in its own terms – is about an issue that is central to the disposition of the appeal. Where a person tells lies about issues which that person thinks are important to their claim but which, because of the passage of time or otherwise, are not, it is open to the Tribunal, given the earlier lies, to approach with caution the person’s evidence regarding matters that are central to the current claim.

Mogadishu

1) Despite the withdrawal in early August 2011 of Al-Shabbab conventional forces from at least most of Mogadishu, there remains in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad. Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. The significance of this category should not, however, be overstated and, in particular, is not automatically to be assumed to exist, merely because a person has told lies.

2) The armed conflict in Mogadishu does not, however, pose a real risk of Article 3 harm in respect of any person in that city, regardless of circumstances. The humanitarian crisis in southern and central Somalia has led to a declaration of famine in IDP camps in Mogadishu; but a returnee from the United Kingdom who is fit for work or has family connections may be able to avoid having to live in such a camp. A returnee may, nevertheless, face a real risk of Article 3 harm, by reason of his or her vulnerability.


17. Approaching the assessment in greater detail, the Tribunal in AMM and others continued:

346. In fact, the latest evidence indicates that conventional fighting between Al-Shabbab and the TFG/AMISOM may not have entirely ceased in Mogadishu, in that there are reports of clashes, involving mortars, in certain northern districts of the city. Elsewhere, there are plainly significant and disturbing reports of the kind of asymmetrical warfare which Al-Shabbab was using to an extent, behind the government forces’ lines, even before the withdrawal, and to which there is good reason to fear they may make greater resort, following the withdrawal. We entirely understand the respondent’s criticisms of Dr Hammond’s updated report, insofar as it might be interpreted as being based on assertion instead of hard evidence. But, given the recent history of Mogadishu and the starting point provided by the conclusions in AM & AM, it would be wrong to rush to the conclusion that there is no real risk of Al-Shabbab adopting and being able to implement such a tactic.

349. As well as the latest evidence of such behaviour on the part of Al-Shabbab, there is evidence of a far smaller, but nonetheless material, risk from rogue elements of the TFG, operating in Mogadishu, who may seek directly to harm ordinary people, such as by robbery, or else may pose an indirect risk, by fighting amongst themselves or with official elements.

350. Putting all this together, we conclude that, as at the present time, an Article 15(c) risk exists, as a general matter, in respect of the majority of those in Mogadishu and, as a general matter, as to those returning there from the United Kingdom.

357. Nevertheless, the evidence before us points to there being a category of middle class or professional persons in Mogadishu who can live to a reasonable standard, in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. A returnee from the United Kingdom to such a milieu would not, therefore, run an Article 15(c) risk, even if forcibly returned. Into this category we place those who by reason of their connection with “powerful actors”, such as the TFG/AMISOM, will be able to avoid the generalised risk. The appellants argued that no such category exists; but we reject that submission. Indeed, the category that emerges from the evidence is wider than the “powerful actors” exception, and covers those whose socio-economic position provides them with the requisite protection, without running the risk of assassination faced by those in or associated with the TFG.

358. The significance of the category we have identified should not, however, be overstated. For most people in Mogadishu the Article 15(c) risk persists, at the present time. In the case of a claimant for international protection, a fact-finder would need to be satisfied that there were cogent grounds for finding that the claimant fell within such a category.

471. Our conclusions on this issue are, accordingly, with some nuances very much like those of the ECtHR in Sufi & Elmi: in general, a returnee with no recent experience of living in Somalia would be at real risk of being subjected to treatment proscribed by Article 3 in an Al-Shabbab controlled area. We consider that “no recent experience” in this context means that the person concerned left Somalia before the recent rise of Al-Shabbab, and its territorial gains in the region, which occurred in 2008. This does not, however, mean that a person with such recent experience will be unable to make good a claim to international protection. Even in such a case, the person concerned will, of course, be returning from the United Kingdom, with all that that may entail. However, in general it will be less likely that such a person would be readily identifiable as a returnee. Even if he or she were, the evidence may point to him or her having struck up some form of accommodation with Al-Shabbab, whilst previously living under their rule,

The continuing application of AMM and others as country guidance

18. AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC) remains country guidance. When dealing with country guidance, the Court of Appeal in SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 (13 July 2012) spoke of the caution with which one should approach departing from it. Such cases are not legal precedents in the sense of establishing for all times a binding legal principle. Judicial findings of fact cannot bind another Tribunal unless in the strict confines of res judicata, issue estoppel or similar principles. However, they have acquired a unique place in the Tribunal’s attempts to secure a consistency in decision-making, as the Court of Appeal confirmed in paragraph 47 of its judgment:

It is for these reasons, as well as the desirability of consistency, that decision makers and tribunal judges are required to take Country Guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so.

19. In what I take to be a pre-emptive strike, Mr Toal has invited me not to depart from the existing country guidance and, in particular, that I should not be persuaded that current conditions (particularly the May 2012 expulsion of Al-Shabbab from Mogadishu) amount to the very strong grounds supported by cogent evidence required before departing from it. I agree with that submission and do not intend to depart from AMM. Having been given the opportunity of reviewing the latest background material, I am able to say that I have considered it and am not persuaded that the decision in AMM requires modification.

20. Mr Toal first drew to my attention the Update on security and human rights issues in South-Central Somalia, including in Mogadishu Joint report from the Danish Immigration Service’s and the Norwegian Landinfo’s fact finding mission to Nairobi, Kenya and Mogadishu, Somalia 17 to 28 October 2012 (4 January 2013), (“the January 2013 report”). As the writers immediately concede, the report had to contain something of a health check as security advice from the Norwegian and Danish embassies in Nairobi meant the delegation only visited Mogadishu twice and only for one day at a time. All meetings in Mogadishu were held at the African Union Mission in Somalia (AMISOM) Conference Centre near the Aden Adde International Airport in Mogadishu. The security situation appeared sufficiently fluid to justify a further visit a few months later with the result that a subsequent report was issued in May 2013: Security and protection in Mogadishu and South-Central Somalia - Joint report from the Danish Immigration Service’s and the Norwegian Landinfo’s fact finding mission to Nairobi, Kenya and Mogadishu, Somalia 16 April to 7 May 2013 (15 May 2013), (“the May 2013 report”). Once again there is a reference to the physical limitations imposed on such fact finding missions as, due to security concerns for persons from the international community in Mogadishu, the delegation was advised by the Danish Embassy in Nairobi and the UNDSS to limit its stay in the city to three days only. The delegation was also advised not to be accommodated at any hotel in Mogadishu. The delegation was accommodated by the security company SKA-Somalia at Aden Abdulle International Airport, Mogadishu. Clearly forewarned as to the content of the report and fearing the possible ramifications of it, Amnesty International issued a statement warning against the report’s findings being treated as a green light for returns notwithstanding the humanitarian situation in Somalia. Hence, coinciding with the second Danish report came the Amnesty International Public Statement - Returns to South and Central Somalia: A Violation of International Law (15 May 2013), (“the May 2013 Amnesty statement”).

21. Mr Toal referred me to various passages in the January 2013 report which I have set out in Appendix 1 to this determination. Not unexpectedly, the report speaks of a growing optimism about developments in South-Central Somalia, including Mogadishu, whilst at the same time referring to the many obstacles and challenges. Whilst it would not, in my judgment, be proper to summarise the report's conclusions as stating that it is one step forward and two steps backwards, nor would it be right to describe the positive elements without also referring to the setbacks. Clearly, the absence of a well-functioning military and police force is a major obstacle in achieving greater security. This is the almost universal assessment of a number of individuals whose views were sought in the preparation of the report. Inevitably, the civilian population is at a reduced risk as a result of the cessation of shelling in Mogadishu when compared with, say, July 2011 when two-thirds of Mogadishu was under Al-Shabbab control and there were frequent artillery bombardments. The point made by Mr Toal is that the turning-point was to be found in August 2011 when Al-Shabbab made its most substantial withdrawal from Mogadishu. This event was considered by the Tribunal in AMM and formed part of its assessment. Whilst the absence of direct fighting between the two sides since May 2012 takes the process a step further, it should not be regarded as a watershed post-dating AMM and requiring its assessment to be significantly re-modelled.

22. The conflict, rather than ending completely, has taken a different course. In particular, the tactics of Al-Shabbab have become more akin to guerrilla warfare in which assassinations, improvised explosive devices and hand-grenade and suicide attacks are the favoured means of engendering terror. These are most prevalent in certain identified areas of Mogadishu. Whilst the number of civilian casualties has decreased, such casualties remain a daily occurrence. The general population of Mogadishu, however, enjoy freedom of movement, save in one or two specific areas where Al-Shabbab continue to maintain influence. Whilst the government is unable to provide universal security, Al-Shabbab will continue its efforts to destabilise the government, according to those questioned.

23. The passages in the May 2013 report to which my attention was drawn are set out in Appendix 2 to this determination. Peter Klansoe in the May 2013 report, when speaking of Mogadishu, told the fact finding mission that, notwithstanding the completion of its combat withdrawal from Mogadishu in May 2012, Al-Shabbab continues to have influence in the city. Members or sympathisers of Al-Shabbab remain there. Nevertheless, compared with the time when the Mogadishu was a divided city straddling the front line, there is now freedom of movement and there has been a return to the city of some of those in the Afgoye corridor. It may be that once Al-Shabbab realise that there has been a return to normality (such as with a return to people using the Lido Beach or the Bakara market), its response is to mount a terrorist attack in order to affirm its continuing presence. UNDSS, Mogadishu, describes the usual kind of attacks by Al-Shabbab as hit-and-run, as well as hand-grenade attacks and targeted killings. There was, however, as recently as April 2013, a mortar attack on the stadium occupied by AMISOM. With such a fluid security situation, it would be wrong to assume the number of attacks is necessarily decreasing. There will be rises in the numbers as well as decreases. Inevitably, casualties are often described as being in the wrong place at the wrong time.

24. it is not, therefore, surprising that Amnesty International in its commentary on the current security situation, raise a voice of caution. The passages to which I was referred in the May 2013 Amnesty statement are set out in Appendix 3 to this determination It concedes, as it is bound to do, that there have been some improvements in security but the situation cannot properly be classified as a fundamental, durable and stable change of circumstances. The situation remains volatile and, like the fact-finding missions, Amnesty attributes much of the insecurity to the lack of authority, discipline and control of government forces and their allied militias. It refers to a targeted attack on 5 May 2013 in which a delegation of Qatari government officials was attacked resulting in civilian casualties. There were two large-scale attacks on 14 April 2013, in one of which Al-Shabbab militia attacked the Benadir High Court and in the other, a convoy of Turkish humanitarian workers on the airport road.

25. The risk faced by those in Al-Shabbab controlled areas in Somalia continues as identified in AMM, as well as the humanitarian risks faced by those in IDP settlements. In South and Central Somalia, including Mogadishu, Amnesty drew attention to the need to make the risk assessment on a case-by-case basis, accepting that some people may have protection through clan or close family connections but that many people are excluded from such protection and some, such as female-headed households, single females, children and families from minority clans, remain at heightened risk.

26. Overall, it is of course greatly to be welcomed that some improvements are discernible. They are, in layman’s terms and taken from a very different context, the green shoots of recovery. There is undoubtedly a much needed sense of optimism but also a recognition that there is a long way still to go. It is for these reasons that I am satisfied that the assessment of risk in AMM should continue to offer guidance to decision-makers.

The appeal to the Upper Tribunal and the finding of an error of law

27. The first stage in the course of this appeal occurred on 11 March 2013 when I found that the determination by the First-tier Tribunal was materially flawed by its failure to recognise the central importance of applying background material and country guidance in the assessment of risk on return to Somalia. I gave my reasons on 19 April 2013 and these are found in Appendix 4 of this determination.

The appellant’s evidence in the Upper Tribunal

28. As appears from paragraph 8 of the finding on error of law, I directed that the appellant was to file and serve any witness statement upon which he intended to rely and which would stand as his evidence-in-chief. The deadline of 24 May 2013 was not met and no further witness statements have ever been served. However, at the outset of the hearing, Mr Toal, on behalf of the appellant, sought leave to call his client to adduce further evidence. There were obvious difficulties in pursuing this course since it would not provide the respondent with an opportunity to know the evidence that was to be provided or to take adequate preparatory steps to challenge it. However, I permitted the appellant to provide oral evidence. In doing so, he confirmed that he was born in Mogadishu in October 1977 and had never lived elsewhere. He lived with his family which consisted of his mother and his father, brothers and sisters. He stated that his father was a teacher, teaching Somali and English in one of the normal schools in Mogadishu.

29. He went on to describe that he had not spoken to his father or mother since he had arrived in the United Kingdom in 1999. He explained that he started drinking alcohol in 2004 and this led to his experiencing problems with the Home Office. His drinking resulted in his losing contact with his family.

Findings of fact

30. There are two specific areas in relation to his oral evidence given to me which I am satisfied were untruthful. First, he described conditions in which the family lived in Mogadishu. He stated that the family lived in a tent made of wood and covering and this was the only form of accommodation. He described it as a ‘buul’. I have no doubt he was not telling the truth. He has never suggested before that family conditions in Mogadishu resulted in the family living in abject poverty or destitution. Had this been the case I am quite satisfied he would have mentioned it as being a significant, perhaps overwhelmingly significant, factor in advancing his claim that it would be impossible for him to return to Mogadishu. Furthermore, since he claims that he has had no contact with his family since 1999 when he arrived, he must be referring to a period which predates his departure. Yet his father was a teacher living in what one might infer was, according to Somali standards, a middle-class existence. On any view there were funds sufficient to finance the appellant’s journey to the United Kingdom.

31. In addition, he has a sister and brother in the United Kingdom, both British citizens. It is simply inconceivable that they would have permitted their parents to live in destitution without taking steps to remedy the position or, indeed, to extract them from Somalia.

32. The evidence provided by the appellant comes at a significant stage in the proceedings. The appellant is not unintelligent and spoke good English. He has been in the United Kingdom for many years. He had access to the decision that I made in which I said in paragraph 3 that it was not disputed his father was a teacher and his family lived and continue to live in Mogadishu. I had referred to the passage in the country guidance which differentiated between those at risk and those not at risk. The passage which I identified included the following -
Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle-class or professional persons, who can live to a reasonable standard in circumstances where the Article 15 (C) risk, which exists for the great majority of the population, does not apply.

33. I am satisfied that the evidence provided for the first time in his oral evidence was a direct response to the challenge the appellant knows will be made by the Secretary of State to his claim that he cannot return to Mogadishu. It is untrue that the family lived, or live now, in a tent.

34. Secondly, I reject his claim that he has had no contact with his parents since he arrived in the United Kingdom in 1999. It was put to him that his explanation for this was that he lost contact with members of his family as a result of his excessive drinking which was not acceptable to them personally or as Muslims. However, this offers no explanation for the period prior to 2004 when he states his drinking problems began and which he attributes to the respondent's failure to respond to his request for further leave which he made in February 2005. When pressed about this by Mr Walker, the appellant had a ready answer. He said it was because of the civil war and that he was not able to contact them. He immediately conceded that this was contrary to his evidence that his sister had maintained contact with his parents.

35. Further, the appellant told me that he had spoken to his sister that very morning. Notwithstanding this, he claimed that he did not know where his parents were living. I reject this evidence because, notwithstanding a coolness that he claims to exist in the relationship between them, I do not consider it credible that his sister would refuse to provide him with social and domestic details of his parents when she herself was in contact with them. It would be an act of extreme cruelty for her to refuse to speak to him about his parents and there would be no reason for it. The fact that he maintains contact with his sister and is not entirely estranged from her provides no explanation why she would wish to deprive him of information that his parents are well or, indeed, ailing and destitute.

36. The appellant's failure to provide a truthful account of his parents’ circumstances in Mogadishu and asserts, untruthfully, that he has no contact with them are all of a piece with his original discredited claim to have come from a minority clan in a part of Somalia where there is no adequate security. They seek to obscure the suggestion that he is in a position to return to his parents and brothers and sisters and, perhaps, his wife. I am, of course, forced to ask why he would wish to do this. I am sure that his reason for doing so is that he knows that a truthful account of the conditions in which they live in Mogadishu and a truthful account of an ordinary relationship maintained by him with his family would fatally undermine his claim that he cannot return to Mogadishu. There is no other credible explanation for it. Were he to fall into the situation of the great majority of the population who are unable to live to a reasonable standard and so avoid the Article 15 (c) risk, he would have told us. There would have been no need to dissemble. It is only because, as an intelligent man, he knows the true circumstances of his parents that he has had to tell such obvious untruths. On balance of probabilities I am satisfied that his family have protection mechanisms in place in Mogadishu of which the appellant is only too aware. It is for this reason that he has consistently attempted to obscure them by a series of discredited accounts: minority clan membership, no home-land to protect him, his parents living in abject poverty and out of contact with him, other family members in Somalia who hardly appear in the account. The truth is only occasionally left to surface; his father a teacher, a home in Mogadishu, funds to permit emigration, his sister in contact with the family, albeit clouded from view by a persistent lack of candour.

The application of AMM and others to those findings and Article 15(c)

37. I am well aware of the sensible guidance provided in AMM that the category of those who are able to avoid the risk which is commonplace for the majority of the population should not be overstated and that it should not be assumed to exist merely because a person has told lies. In reaching my conclusion I hope I have avoided both the trap and the unfairness of making assumptions which are not supported by any evidence. I am, however, satisfied that I have been significantly misinformed about his true circumstances and the only credible explanation for this is that, were I to know them, the claim would fail. Neither the appellant’s brother nor sister have given evidence or made a witness statement. I reject the suggestion that they are so estranged from him because of his conduct that they would not wish that justice be done. Indeed, I see every incentive for them to wish that no injustice would be perpetrated. Were they to have given evidence, they would undoubtedly have been asked to explain what steps they would have taken to alleviate their parents’ suffering if they were, indeed, without an adequate home and why they have not taken those steps.

38. For this reason I am satisfied that the appellant's family falls into that category of persons who have avoided the risk that is faced by the great majority of the population in Mogadishu because they are able to live to a reasonable standard. The appellant’s description of his father as a teacher is not inconsistent with his falling within the broad category of the middle or professional classes. The absence of any evidence of past persecution supports that. Had there been any actual incidents of persecution since the appellant's arrival in the United Kingdom, I have no doubt that the appellant would have told us.

39. It is for these reasons that I reject the appellant’s claim that he is in need of humanitarian protection by the operation of Article 15 (c).

The appellant’s human rights claim

40. I now turn to the appellant’s human rights claim.

41. I have already referred to the skeletal facts:

a. He arrived on 30 June 1999, now some 14 years ago.
b. exceptional leave to remainwas granted until 19 June 2004. He failed to make an application until 2 February 2005. The delay was not a delay on his part of any consequence.
c. The respondent conceded an in-time application would have resulted in the grant of indefinite leave to remain in 2004/5, had it been processed then.
d. The respondent made a decision on 26 January 2012, after a lapse of time of some seven years. The respondent provided no explanation for the delay, described by the Judge as "not acceptable and cannot be excused".
e. The appellant had not been disadvantaged by the uncertainty of not knowing the result.
f. The appellant’s life had gone into a downward spiral from 2004 onwards and that his offending was drink-related.
g. The appellant’s offending has already been set out in detail.
h. There is no evidence from a clinician of his having undergone any treatment for his excessive drinking which had led him to acts of violence.
i. The latest offence of affray took place on 15 February 2011, albeit sufficiently minor to merit the appellant only being cautioned.
j. A letter from a probation officer dated 15 February 2012 recorded that the appellant had been sober for 12 months
k. The appellant maintains contact with his family in Somalia.
l. His sister is fully aware of the family’s presence in Somalia.

The long residence provisions

42. The benefit of the long residence provisions of the Immigration Rules set out in paragraph 276A did not apply to the appellant as a result of being sentenced to an immediate term of imprisonment. In any event, the period between arrival on 30 June 1999 and decision on 26 January 2012 or 1 May 2012 spanned a period of 13, not 14, years. Since 9 July 2012, the period has increased to 20 years.

The delay

43. There has been significant delay in this case brought about by the inexcusable inaction of the Secretary of State. The delay spans from 2005 to 2012. In EB (Kosovo) v SSHD [2008] UKHL 41 (25 June 2008) Lord Bingham of Cornhill spoke of the effect of delay in these terms:

14. It does not, however, follow that delay in the decision-making process is necessarily irrelevant to the decision. It may, depending on the facts, be relevant in any one of three ways. First, the applicant may during the period of any delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier. The longer the period of the delay, the likelier this is to be true. To the extent that it is true, the applicant's claim under article 8 will necessarily be strengthened. It is unnecessary to elaborate this point since the respondent accepts it.
15. Delay may be relevant in a second, less obvious, way. An immigrant without leave to enter or remain is in a very precarious situation, liable to be removed at any time. Any relationship into which such an applicant enters is likely to be, initially, tentative, being entered into under the shadow of severance by administrative order. This is the more true where the other party to the relationship is aware of the applicant's precarious position. This has been treated as relevant to the quality of the relationship. Thus in R (Ajoh) v Secretary of State for the Home Department [2007] EWCA Civ 655, para 11, it was noted that "It was reasonable to expect that both [the applicant] and her husband would be aware of her precarious immigration status". This reflects the Strasbourg court's listing of factors relevant to the proportionality of removing an immigrant convicted of crime: "whether the spouse knew about the offence at the time when he or she entered into a family relationship" see Boultif v Switzerland (2001) 33 EHRR 50, para 48; Mokrani v France (2003) 40 EHRR 123, para 30. A relationship so entered into may well be imbued with a sense of impermanence. But if months pass without a decision to remove being made, and months become years, and year succeeds year, it is to be expected that this sense of impermanence will fade and the expectation will grow that if the authorities had intended to remove the applicant they would have taken steps to do so. This result depends on no legal doctrine but on an understanding of how, in some cases, minds may work and it may affect the proportionality of removal.
16. Delay may be relevant, thirdly, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes. In the present case the appellant's cousin, who entered the country and applied for asylum at the same time and whose position is not said to be materially different, was granted exceptional leave to remain, during the two-year period which it took the respondent to correct its erroneous decision to refuse the appellant's application on grounds of non-compliance. In the case of JL (Sierra Leone), heard by the Court of Appeal at the same time as the present case, there was a somewhat similar pattern of facts. JL escaped from Sierra Leone with her half brother in 1999, and claimed asylum. In 2000 her claim was refused on grounds of non-compliance. As in the appellant's case this decision was erroneous, as the respondent recognised eighteen months later. In February 2006 the half brother was granted humanitarian protection. She was not. A system so operating cannot be said to be "predictable, consistent and fair as between one applicant and another" or as yielding "consistency of treatment between one aspiring immigrant and another". To the extent that this is shown to be so, it may have a bearing on the proportionality of removal, or of requiring an applicant to apply from out of country. As Carnwath LJ observed in Akaeke v Secretary of State for the Home Department [2005] EWCA Civ 947, [2005] INLR 575, para 25:
"Once it is accepted that unreasonable delay on the part of the Secretary of State is capable of being a relevant factor, then the weight to be given to it in the particular case was a matter for the tribunal"

44. The appellant does not rely upon the effect of delay upon him from the first categorisation since there is no evidence of the appellant developing closer personal and social ties or establishing deeper roots in the community than he could have shown earlier. Nor does the appellant seek to rely upon the second effect of delay since the appellant does not rely on the development of a personal relationship made tentative by the shadow of severance. Mr Toal, however, relied upon the effect of delay arising from the third situation by reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes. In February 2006 the half brother of the appellant in EB (Kosovo) was granted humanitarian protection, EB was not thereby demonstrating that the system could not be said to be "predictable, consistent and fair as between one applicant and another" or as yielding "consistency of treatment between one aspiring immigrant and another". It is not, therefore, a situation on all fours with the circumstances of the appeal before me.

Rashid/S prejudice, injustice or unfairness

45. I have also considered the appellant’s position in terms of any general principle of unfairness and have concluded that the appellant’s position is not such as to require the Secretary of State to have granted leave to remain arising from broad principles of the prejudice, injustice or unfairness that the appellant has suffered.

46. In AA (Afghanistan), R (on the application of) v SSHD [2012] EWCA Civ 1643 (6 November 2012), the Court of Appeal dealt with the circumstances in which a decision-maker should fashion his decision so as to recognise prejudice or injustice or conspicuous unfairness arising from the fact that the decision is being taken at the time it is. In doing so, the Court reviewed a number of authorities. In Rashid [2005] INLR 550, [2005] EWCA Civ 744, an asylum claim was refused in breach of an undisclosed policy of the Secretary of State. When the policy came to light, the claimant's advisors requested reconsideration. But by then, the policy had lapsed. The refusal of asylum was maintained in light of current circumstances. The claimant obtained a judicial review, and the Court of Appeal dismissed the Secretary of State's appeal. Pill LJ held that the degree of unfairness to the claimant was so conspicuous as to amount to an abuse of power. In S [2007] IAR 781, [2007] EWCA Civ 546, the Secretary of State had deliberately delayed dealing with a certain category of cases in order to meet targets that had been agreed with the Treasury. This was held to be legally objectionable. Carnwath LJ expressed some reservations about the manner in which Pill LJ had deployed the concept of abuse of process in that case (see paragraph 39 of the judgment in S). Carnwath LJ thought that the Rashid decision had sought "to transform [abuse of process] into a magic ingredient able to achieve remedial results which other forms of illegality cannot match". However he indicated (paragraph 46) that:

"It was open to the court to determine that a legally material factor in the exercise of the discretion [that is, the discretion to grant indefinite leave to remain] was the correction of injustice."

Approached in that way, Rashid:

"...respected the principle that the Secretary of State's decision should be made on the basis of present circumstances, but it recognised that those circumstances might include the present need to remedy injustice caused by past illegality."

47. In S [2009] EWCA Civ 142, the three appellants' asylum claims had been decided after a policy which would have favoured them had been withdrawn. Goldring LJ considered there could be no question of intervention by the court on the basis of a generalised and unfocussed idea of fairness; or by consideration of what subsequently may have happened to the individual in question and categorised in broad terms such as prejudice, loss and detriment. There could be no question of the court trying to dictate to the Secretary of State how she should administer the immigration system. Further, where the Secretary of State has sufficiently had regard to past illegality and any injustice, she would be entitled in the exercise of her discretion to refuse ILR. Intervention would be restricted to the extreme case, where fairness dictated that no reasonable Secretary of State could have done other than grant ILR. It follows the court will not intervene unless the decision of the Secretary of State was “conspicuously unfair." Laws LJ concluded:

17. Bearing in mind Carnwath LJ's strictures relating to the Rashid decision, and Goldring LJ's summation in S [2009] of the correct approach to the question when should the Ravichandran principle be departed from, I consider that the essence of the matter amounts to this. Where it is said that past events would make it unfair for the case in hand to be decided on the conventional Ravichandran approach, a reasonable Secretary of State may have to consider whether she should take account of those events, and in light of them decide the case in such a way as to avoid conspicuous unfairness to the claimant.
18. This is, in my judgment, a Wednesbury issue ([1948] 1 KB 223): would it be so unfair to proceed without regard to the factors relied on that no reasonable Secretary of State would take such a course? This must be the nature of the question, since any more intrusive approach would involve the court to an extent in the direction of immigration policy, and that would be illegitimate. I conceive this approach to be in line in Rashid as it was understood in S [2007], and with Goldring LJ's conclusions in S [2009].

The Enforcement Instructions and Guidance

48. On 20 January 2012 the Home Office announced Statement of Changes HC 1733 which came into effect on 13 February 2012. Amongst other changes the amendment to the Rules removed paragraph 395C. Paragraph 395C had required the Secretary of State to have regard to all relevant factors before a decision to remove under s. 10 was made as well as the eight specified factors set out in sub-paragraphs (i) to (viii). Chapter 53 of the Enforcement Guidance and Instructions had, however, provided additional policy guidance which included the role or impact of delay in decisions which pre-dated the February 2012 changes. In particular, where an applicant, like the appellant, was unable to show that he had a protected family life, a period of 3 to 5 years delay but otherwise had a good immigration history ("for example an initial application or an in-time application for further leave”) would normally be a sufficient contributory delay to warrant the grant of leave to remain.

49. In the case, however, of a person who, like the appellant, was not able to rely upon a good immigration history, the periods of delay were significantly increased. The Enforcement Instructions and Guidance then offered guidance as to the effect of delay contributing to a significant period of residence, after an assessment of the viability of removal and where there are other relevant factors. In such a case, a delay of 4 to 6 years and more usually 6 to 8 years would qualify to warrant the grant of leave to remain. I have no reason to doubt his submission by Mr Toal that at least at some stage in the decision-making process, the UKBA applied the following guidance:

Any other [non-family] case where delay by UKBA has contributed to a significant period of residence, following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, 4-6 years may be considered significant, but a more usual example would be a period of residence of 6-8 years.

50. As importantly, he relied in the Enforcement Instructions and Guidance upon the reference to an applicant's personal history to which regard should be paid to his character and conduct as (i) involving evidence of criminality that met the Criminal Casework Directorate threshold, that is, the threshold for deportation and (ii) cases where an individual had been convicted of a particularly serious crime (below the Criminal Casework Directorate threshold) involving violence, sexual offence, offences against children or a serious drug offence or (iii) cases where it is considered undesirable to permit the individual to remain in the United Kingdom in light of exceptional circumstances or in light of his character conduct or associations or the fact that he represents a threat to national security. In other words, he contended that the consideration of an individual's personal history as part of the paragraph 395C exercise, whilst taking into account any form of criminal offending, was principally concerned with a higher level of offending them that represented by the appellant’s past criminal misconduct.

51. Whilst none of these considerations have a direct bearing on a decision made on 1 May 2012, they create a back-drop for the consideration of the proportionality of removal in the appellant’s case as they inform the respondent’s approach to delay and the effect this has upon the public interest in securing removal.

The resolution of the human rights claim

52. The appellant, born 2 October 1977, was 21 years old when he arrived in the United Kingdom. He has remained here for 14 years. He has never established that he was entitled to refugee status. He is not now a refugee or entitled to humanitarian protection. His removal will not result in a violation of his Article 3 rights. The exceptional leave to remain that he was originally granted expired on 19 June 2004. Since then his only right to remain has been whilst he has awaited the decision of his application for further leave to remain. Hence, for the last 9 years he has been irremovable without an underlying right. He has no substantive right to remain under the Immigration Rules as a family member seeking to join a relative or spouse settled in the United Kingdom; nor under the long residence provisions. He did not comply with the requirements for leave to remain under the former long residence provisions because he had accumulated less than 14 years continuous presence and because of his offending. He does not presently qualify under the new Rules.

53. He is not able to claim that the relationship he has with his brother or sister or her family has those developed elements of dependency that go beyond the normal emotional ties of kinship and friendship that protect relationships between adult family members from forced separation.

54. He has not established a private life that has become so embedded in the fabric of British society that removal would violate his core rights slowly developed over a long period of residence. We know almost nothing about it. The Judge’s comments in paragraph 46 of her determination to similar effect made good sense.

55. In such circumstances, given the absence of a substantive foundation for remaining here, there is a public interest in removing him just as there is a public interest in removing anyone who has no right to remain. The fact that he fails to meet the requirements of the Immigration Rules is a reflection of the fact that he falls outside the protection and benefits offered by the United Kingdom authorities to certain classes of persons whose members are carefully defined as meriting a continued presence in the country. There is no room for extending those categories by application of a principle of ‘near-miss’.

56. The public interest in removal is, however, brought under pressure by what I perceive to be three principal factors.

57. First, having first been granted exceptional leave to remain, the appellant was entitled in accordance with normal practice (if not a written policy) to the grant of indefinite leave to remain. This depended upon an application made within time which the appellant did not make. I am not satisfied the fault for this lies at the doorstep of anybody other than the appellant himself. That said, the Judge found that the delay of six months was “not a delay of any consequence”. Reality might take a rather different view of this as it was a delay which, as it happened, may well have had very considerable consequences. I am, however, satisfied that what the Judge meant by this expression was that, in the circumstances of this case, the delay provided little by way of a principled reason why an application made out-of-time should have deprived the appellant of the benefits of an in-time application. If it is not a finding of fact on the part of Judge Pirotta, it is a reason that operates in the appellant’s favour which the respondent has not sought to challenge or address.

58. More importantly, it lies ill in the mouth of the respondent to rely upon the appellant’s delay in making an application for indefinite leave to remain when the respondent is guilty of a 7-year delay in responding to it. The consequences of the appellant’s delay must, to some extent, be mitigated. To adapt the words of Lord Bingham in EB (Kosovo) v SSHD, a system so operating that creates such a sharp distinction between the fate of one who makes an application made only one day within time and another in the same circumstances who applies one day late might not be said to be "predictable, consistent and fair as between one applicant and another" or as yielding "consistency of treatment between one aspiring immigrant and another”. Nevertheless, the appellant was not one day late. He was six months late, and the respondent is entitled to favour those who attempt to regularise further stay in the United Kingdom by applying when they are lawfully present rather than when they are overstayers with no right to remain.

59. It is also important not to attempt to re-write history. Whilst it is true that, if the appellant had applied for further leave to remain by application made prior to 19 June 2004, he would normally have been granted indefinite leave to remain, the fact remains that he did not do so. Life is full of consequences as a result of actions or decisions taken which led to them. The effects cannot be re-made by speculating on what might have happened if a different action or decision had been taken: ‘if only, I had…’. For these reasons, considerable caution should be exercised in trying to implement today what the consequences might have been if history had been different.

60. Second, and perhaps of much greater importance is the inexcusable delay before the Secretary of State made a decision in the appeal. Delay, as has been pointed out, may reduce the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes. In EB (Kosovo) v SSHD Lord Bingham drew attention in paragraph 16 of his opinion to the differential impact caused by the delay to two apparently similar applications by reference to the circumstances of JL. JL had escaped from Sierra Leone with her half brother in 1999, and claimed asylum. In 2000 her claim was refused on grounds of non-compliance. That decision was erroneous, as the respondent recognised eighteen months later but the delay resulted in the two cases being decided separately and with quite different outcomes. In February 2006 the half brother was granted humanitarian protection. She was not. It is not therefore surprising that the Courts intervened to prevent an inconsistent outcome. These facts do not apply in the present appeal.

61. Judge Pirotta pointed out with some justification that the delay, whilst not acceptable, resulted in no disadvantage to the appellant. Had the appellant made good use of the 7-year delay, he could have demonstrated that he had thoroughly integrated himself into society thereby rendering removal disproportionate. If the opportunity was lost, it was lost by the appellant’s actions.

62. The third factor is simply that the appellant has been in the United Kingdom since 30 June 1999, almost 14 years. This factor maintains its own persuasive force regardless of whether the appellant, in the past, fell outside the long residence provisions or falls outside them now. Whilst the nature of the appellant’s private and family life has the limitations I have observed above, there remains the fact that the appellant has spent about 14 years in the United Kingdom.

63. Into this balance must be placed the appellant’s criminal past. It is important not to place undue weight upon the appellant’s offending. This is not a deportation appeal and the appellant does not have the automatic public interest put in the balance against him. The principal offences stand as two offences of violence, albeit no actual bodily harm was caused in the second of them. Imprisonment is reserved for serious offending but 16 days and 7 months reflect a level of offending that is, in relative terms, minor. They would not normally have merited removal if the offender had settled status. I am satisfied that they would not have lawfully permitted the appellant’s removal if he had had a wife and children settled in the United Kingdom. Further, the offences took place 5 or 6 years ago and the Secretary of State has delayed responding to them, a delay, as I have said, that is hardly consistent with an imperative public interest. There is no evidence of his underlying drink problem since 2011, some 2 years ago. With these considerations in mind, it is essential that the appellant is not removed solely or principally because he has offended. The entire pattern of offending has to be taken into account. It might be permissible, for example, for the offending to tip the balance in favour of removal but it should not be the driver behind the decision to remove.

64. I also regard it as a material factor that the appellant will be removed to Somalia, a country in which its people face significant difficulties. However, for the reasons I have given, the appellant does not satisfy the requirements for the grant of humanitarian protection.

65. Striking the balance, I attach greatest weight to the fact that the appellant is not able to establish a substantive right to remain under the Immigration Rules past or present. I do not regard the fact that the appellant has spent 14 years in the United Kingdom as outweighing the balance struck in the Rules between length of time in the United Kingdom and the other material factors. Nor do I consider that undue weight should be attached to the fact that things may have been different if history had been re-written and the appellant had made an in-time application for indefinite leave to remain which had been granted timeously. I accept that delay has the effect of blunting the Secretary of State’s reliance on firm immigration control but there is a distance that separates this principle from elevating delay into a factor that creates a positive right to remain absent a substantive right to remain under the law. It is not to be treated as a consolation prize handed down to a person who has been the victim of a delayed decision or as a punishment meted out to the Secretary of State for poor performance in the exercise of her duty. The Enforcement Instructions and Guidelines clearly envisage shorter periods of delay as being highly material in relation to enforcement but they do not stand alone. Instead, they form part of the mosaic of factors which inform the decision-maker on issues of proportionality where, at one extreme, delay has only benefitted, and not prejudiced, the applicant to the other extreme, where delay has resulted in the applicant being deprived of a right that he would otherwise have been able to seize. I would not regard the appellant’s offending as a significant reason to justify removal. He is not being removed because he represents a threat to the community or out of a sense of revulsion for serious wrong-doing. I would rather see his offending as evidence of a failure on the appellant’s part to demonstrate that he has used the time in the United Kingdom to integrate fully into the country or to develop strong and binding ties with the community in which he lives such as to render the severance of those ties disproportionate.

66. Weighing together all of the material factors (and not simply those to which I have paid particular regard in the preceding paragraph), I consider that the appellant’s removal is proportionate.

DECISION

The Judge made an error on a point of law and I substitute a determination dismissing the appeal on all the grounds advanced.







ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL
11 June 2013

Appendix 1

Update on security and human rights issues in South-Central Somalia, including in Mogadishu Joint report from the Danish Immigration Service’s and the Norwegian Landinfo’s fact finding mission to Nairobi, Kenya and Mogadishu, Somalia 17 to 28 October 2012 (4 January 2013)

Due to security advice from the Norwegian and Danish embassies in Nairobi the delegation only visited Mogadishu twice and only for one day at a time. All meetings in Mogadishu were held at the African Union Mission in Somalia (AMISOM) Conference Centre near the Aden Adde International Airport in Mogadishu.

Peter Klansoe, Regional Director, Danish Refugee Council (DRC) considered that the main challenge for the President and the Premier Minister of Somalia would be to address the internal problems in S/C Somalia. At the moment [mid October 2012] the UN Security Council is awaiting a clarification of the security situation as well as the political situation in S/C Somalia. When asked if he has a similar degree of optimism as were expressed in February 2012 to the DIS, Peter Klansoe, DRC stated that he is still optimistic regarding the developments in S/C Somalia, including Mogadishu. It was added that the election process of the President was a positive sign. The next steps and processes are important and they will have to take the time that is needed. Everyone participating in the political processes should feel that they have been heard and that they are being represented properly. However, there are many obstacles and challenges. One challenge is how to handle the negotiation processes; another is the position of Puntland. If Puntland does not accept to be included in the political processes there will be a completely different situation. In addition to these challenges the President of Somalia lacks well-functioning military and police forces. There are many examples of soldiers of the Somali National Armed Forces (SNAF) undertaking violations of human rights.

Tony Burns, Director of Operations, SAACID1 Australia stated that the [governmental] institutions you have in Mogadishu [and in the rest of] S/C Somalia are on paper and it would take decades to establish functioning institutions and genuine government services, and billions of dollars But the al-Qaeda linked Islamist group al-Shabbab still controls much of southern and central Somalia, and has staged numerous suicide attacks in Mogadishu since it was driven out by a coalition of African Union troops and pro-government forces last year. And only last week, one of the country’s best-loved comedians and playwrights – Warsame Shire Awale – who was a well-known critic of al-Shabbab, was gunned down in an apparent assassination attempt. Regarding the security situation in Mogadishu Kilian Kleinschmidt, OCHA, Mogadishu, stated that a dramatic improvement has taken place since February 2012. Today there are less gunfire and no artillery. These are simple indicators which demonstrate a process from war to tremendous improvement in security. However, there are still many security challenges as there are incidents, including grenade attacks every night. There are daily attacks on AMISOM by al-Shabbab along the road from Hoosh to Afgoye. In addition al-Shabbab is infiltrating Mogadishu. Since the transition in August 2012 the security situation has become a little tenser. During the period from January to June 2012 approximately 3.000 gunshot injuries have been recorded in Mogadishu.

Kilian Kleinschmidt, OCHA added that there are approximately 50 hand grenade attacks on various security forces in Mogadishu a week. Regarding security in Mogadishu an international organization explained that there is a lack of government in some parts of Mogadishu and this is especially prevalent in the outskirts of the city. It was added that the power of the government and its security forces is due to the presence of AMISOM.

Regarding civilian casualties in Mogadishu, an international organization explained that it is very difficult, if not impossible, to present exact figures as there is often no reporting. Many wounded never attend hospital for treatment. The international organization also estimated that the problem of civilian casualties is one related to all armed stakeholders in the city. However, the international organization believed that there is a decrease in the number of civilian casualties in Mogadishu, relative to the last few years. This decrease is due to front-line fighting having moved out of Mogadishu. There are now fewer mass-casualty attacks and killings, in particular due to the cessation of shelling in Mogadishu. Still civilian casualties remain a daily occurrence, principally due to assassinations, improvised explosive devices (IEDs) and suicide attacks, and reactions to these attacks by armed forces. Recent grenade and suicide bomb attacks on theatres and cafes, such as the August 2012 attack on the Jezira Hotel, cause numerous civilian casualties. According to an international NGO working in S/C Somalia (A) the number of civilian causalities in Mogadishu has decreased considerably compared to February 2012 and today civilian casualties are at a minimum. In July 2011 two thirds of Mogadishu was under al-Shabbab control. Bombardment and shelling killed many, but this is no longer taking place. Today you have targeted attacks and sometimes by-passers get killed. It’s a question of being at the wrong place at the wrong time.

A local NGO in Mogadishu (B) explained that there is no longer sustained artillery in Mogadishu and there have been no direct fighting between the two sides since May/June 2012 within Mogadishu areas. The fighting has been sporadic hit and run attacks lasting for a short time, often between 10 to 15 minutes and maximum for an hour. These attacks mostly occur in the districts of Karaan, Hurriwa, Daynile and parts of Medina. Tony Burns, SAACID – Australia explained that al-Shabbab still operates in Mogadishu through the clan structures. However it lacks funding, and the decision to withdraw from the city in August 2011 was economical; and AMISOM’s role was only to provide the element of attrition to a process that was already forgone. Today the situation in Mogadishu is completely different from [the period] before August 2011 when al-Shabbab pulled out.

The former editor of a Somalia news agency explained that the security situation in general is better for most people since you don’t have the shelling and fighting which characterized the situation before al-Shabbab withdrew from Mogadishu.

Regarding main challenges for ordinary people in Mogadishu Ayaki Ito, Deputy Representative, United Nations High Commissioner for Refugees – Somalia (UNHCR – Somalia), Nairobi explained that things are changing quite rapidly at the moment. The situation is improving, but the UN is concerned about the security vacuum. Security is an issue at the moment as AMISOM is presently [mid October 2012] out of Mogadishu and clan militias have expanded their influence. Government soldiers as well as politicians are committing violations. Recently there have been hand grenade attacks in Karan, Yaqshid, the livestock market (Hurriwa) and even Hodan. Saferworld explained that from previous experiences in Mogadishu fear is deeply rooted in people. In order for people to trust that improvements are taking place and that they are real the government institutions should be in place and this is not the case yet. The government is only a government by name. Saferworld stated that people in Mogadishu do not yet trust their government and that it is al- Shabbab's strategy to retain fear among ordinary people. Al-Shabbab will continue to install fear as long as the government is unable to provide security. In order to remove fear among people the government and the police have to be more visible in Mogadishu. The former editor of a Somali news agency stated that there are two major problems for civilians in Mogadishu today: Soldiers not being paid/regularly paid, thus making soldiers rob and kill just for a mobile phone.

According to Peter Klansoe, DRC the security situation in Mogadishu is presently more complex and unpredictable as compared to the period during which al-Shabbab was in control of parts of the city [i.e. before August 2011]. The areas of Mogadishu that were controlled by al-Shabbab had some kind of law and order as well as security, despite the serious human rights abuses committed by al-Shabbab. Today there is a security vacuum in parts of the city and this is due to the fact that it can be difficult for people to distinguish between militias, government soldiers and criminal gangs.

Elman Peace and Human Rights Centre, Mogadishu emphasized that people now have freedom of movement even though there are two districts, i.e. Helliwa and Medina, which are still difficult to access. Helliwa is still an al-Shabbab stronghold during night time with many al-Shabbab supporters, so you need protection to move there. There is a lot of police in Helliwa, but al-Shabbab is also very much present in the sense of having a lot of sympathizers but not necessarily militants. Since the area is recently liberated there is also a lot of lawlessness, and both government soldiers and police being responsible for looting and rapes. Because of this many civilians feel that they were actually safer during al-Shabbab since they didn’t have to worry about sexual assaults, rapes and so on. At times civilians felt safer under the al-Shabbab ruling as indiscriminate looting and rapes and killings were not as widespread as they are in the liberated areas during the initial deployment of government forces, although these very protection concerns were still very much taking place in the al-Shabbab’s controlled area. However, Elman Peace and Human Rights Centre, Mogadishu stated that in general the security situation in Mogadishu has improved a lot. Tony Burns stated that during the past two months [September and October] the security situation [in Mogadishu] has deteriorated, and you are seeing more-and-more clans remobilizing. In addition there is no command and control within the SNAF or the police structures and the police are actually controlled by individuals along particular sub clan lines. Tony Burns explained that people’s greatest fear today is not al-Shabbab but the incapacity of the government to protect, provide genuine security, and create meaningful institutions that deliver real services. An international organization explained that people are awaiting an improvement of their lives and for some time to come will give the new government, and its supporters, the benefit of the doubt. However, it is assumed that al-Shabbab will continue to seek out and exploit weaknesses to destabilize the government; and failure to deliver, on security and the economy in particular, will put support for the government at risk. Nonetheless, for the time being, there is a significant sense of optimism among the people of Mogadishu.

Ayaki Ito, UNHCR, explained that there is a lot of underreporting of violations and incidents especially in al-Shabbab controlled areas.

Concerning civilian casualties in Mogadishu Peter Klansoe, DRC explained that it is difficult to state whether or not these casualties have increased or decreased since February 2012. However, today it is more common that persons who are involved in various kinds of disputes are more at risk of being targeted than other people. According to Elman Peace and Human Rights Centre, Mogadishu the number of civilian causalities has decreased considerably [in Mogadishu] if you compare with 2010 when people were caught in a lot of crossfire, today there is not a lot of actual conflict in the city, but you do have targeted killings, as well as many guerrilla tactic assassinations and homicides that go un-investigated. Still, security has improved as civilian casualties have decreased since February 2012. In general security incidents have decreased especially during the last six months, i.e. since February 2012,

A former editor of a Somalia news agency stated that the number of civilian casualties in Mogadishu has decreased since February 2012. This is due to the fact that arbitrary shelling and large scale fighting does not occur any longer. On the other, hand the former editor explained that targeted attacks are increasing. Tony Burns, SAACID – Australia, explained that the wave of return from the diaspora during September and October [2012] has begun to plateau. Mogadishu has rightly never been safer than today, although there are still more than 500 gunshot victims in the city every month. However, this is a significant improvement on the AMISOM/Shabbab urban combat that occurred in the period before this current period, i.e. since August 2011.

According to an international NGO working in S/C Somalia (D) there are areas of Mogadishu which are more or less controlled by al-Shabbab, but only during night-time. Al-Shabbab is not visible at daytime. This is especially the case in Deynile district. Some people still believe that al- Shabbab is more or less in control of Deynile and the livestock market. These two areas are almost empty of people and most people are afraid of staying in those areas as there are reportedly killings by al-Shabbab. However, people in general find that other areas of Mogadishu are safer than ever since the civil war began in 1991.
Appendix 2

Security and protection in Mogadishu and South-Central Somalia - Joint report from the Danish Immigration Service’s and the Norwegian Landinfo’s fact finding mission to Nairobi, Kenya and Mogadishu, Somalia 16 April to 7 May 2013 (15 May 2013)

Due to security concerns for persons from the international community in Mogadishu the delegation was advised by the Danish Embassy in Nairobi and the UNDSS to limit its stay in the city to three days only. The delegation was also advised not to be accommodated at any hotel in Mogadishu. The delegation was accommodated by the security company SKA-Somalia at Aden Abdulle International Airport, Mogadishu.

Regarding armed conflict UNDSS, Mogadishu, explained that despite al-Shabbab’s partial combat withdrawal from Mogadishu in August 2011 this withdrawal was only completed by the end of May 2012. Since then there have been no more al-Shabbab troops holding fixed combat positions in Mogadishu, but there continue to be underground al-Shabbab cells and terrorism. The district of Daynile was the last district of Mogadishu to be liberated from al-Shabbab. Since then, i.e. end of May 2012, there were approximately six weeks of calmness and no fighting in Mogadishu. However, following this period there have been armed attacks again, against targets in the city’s outlying districts such as security forces’ patrols and police stations. Al-Shabbab undertakes these hit and run attacks with small arms and occasionally slightly heavier weapons like rocket-propelled grenades (RPGs). Al-Shabbab is not trying to retake Mogadishu, not even the outlying districts of the city, but it instead uses the attacks as a form of harassment and as a reminder of its presence. Regarding Mogadishu Peter Klansoe, DRC, explained that al-Shabbab still has influence in the city. People are still worried about al-Shabbab and there are still individuals who support or work for al-Shabbab. This is also occurring in refugee camps in Kenya and al-Shabbab has attacked police stations in Kenya. Similar developments are also occurring in Ethiopia. Concerning security for the people of Mogadishu, an international NGO (B), Mogadishu, explained that there has been an improvement since al-Shabbab left the city [in August 2011]. Looking back, the city was divided into two parts with one part controlled by al-Shabbab and one controlled by the Somalia government and the international forces. During this time, people suffered a lot of hardship, it was difficult for people to move around and they had to adapt to different sets of rules when they moved from one sector to another. Fighting along the frontline caused many casualties. These days there are no armed struggle and no frontline [in Mogadishu], people can move freely around in the city and people have moved back from the Afgoye corridor and from elsewhere. However, according to the international NGO (B), Mogadishu, there are still threats in the city. Different kind of improvised explosives, hand grenade attacks and assassinations create fear among people, and al-Shabbab still has influence that affects people’s lives. Checkpoints have been removed, but when people are moving around, they must constantly be careful. For example, since people started to go to Lido beach there have been two attacks there, one car bomb and one suicide bomber. On the other hand, there are clear improvements. For instance, before October last year, people did not dare to go to Bakara market, today they are going. Al-Shabbab can hit anywhere in Mogadishu, according to an international NGO (B), Mogadishu. However, its influence is stronger in some parts of the city than in others. Al-Shabbab’s influence is most noticeable in Suqahoiaha (Hurriwa district), in the northern part of Daynile, the Industrial Road area and at the Bakara market. This is the reason why people think twice before they go to these areas. Nevertheless, al-Shabbab members can be found everywhere, and you cannot identify an al-Shabbab by the way he is looking. Al-Shabbab has infiltrated the police, the intelligence and the military, where they have their informants.

The present security situation in Mogadishu will most likely continue if the international community does not seize the time, i.e. enhance its efforts to support the SNG with institution building and services. There is presently an enormous need for international assistance. It is imperative that the SNG can show people that the government is functioning and that it provides services. According to UNDSS, Mogadishu, it is not uncommon for al-Shabbab fighters to wear the uniforms of the Somali National Armed Forces (SNAF) in order to infiltrate the city. Regarding the number of civilian casualties UNDSS stated that it does not record or report systematically on such casualties, as this is not within UNDSS’s remit [mandate].

UNDSS, Mogadishu, explained that as of today the usual kind of attacks by al-Shabbab is hit and run attacks as well as hand grenade attacks and targeted killings. Some hand grenade attacks might be undertaken on behalf of al-Shabbab by paid youngsters (this is known to have happened in the past). From time to time there are also mortar and other indirect fire attacks, and in early April 2013 there was a mortar attack on the Mogadishu stadium. This stadium is occupied by AMISOM. However, there is no clear evidence that this or previous indirect fire attacks were undertaken by al-Shabbab. In mid-2012 there were several pretty accurate mortar attacks on Villa Somalia as well. UNDSS added that every few months there are such attacks, almost invariably at night.

UNDSS, Mogadishu, emphasized that indirect fire attacks may also be undertaken by others than al-Shabbab. It could be clan related disputes or other issues, but very often no one knows who is behind those attacks. UNDSS made it clear that because of the above mentioned kind of attacks the security is still under threat.

UNDSS, Mogadishu, explained that al-Shabbab undertakes attacks with all types of improvised explosive devices (IEDs). There was a decline in the numbers of actual and attempted IEDs across 2012. However, during the first quarter of 2013 IED attacks have been going up compared with numbers of attacks in the last quarter of 2012.

Regarding IED attacks UNDSS, Mogadishu, explained that remote controlled IED attacks or roadside bombs tend to target AMISOM, SNAF and convoys and such attacks sometimes result in the killing of civilians, i.e., collateral damage.

Concerning hand grenade attacks UNDSS, Mogadishu, explained that numbers of such attacks are high, since having risen during 2012. These attacks are directed against SNAF soldiers, government affiliates, police officers, hotels and teashops frequented by politicians plus any government institution. Such attacks are most often undertaken in the evening. Around three-quarters of all hand grenade attacks in Mogadishu are likely to be by al-Shabbab, but UNDSS made it clear that not all such attacks are not only committed by al-Shabbab.

UNDSS, Mogadishu, further explained that civilians with any known government affiliation could be at risk of a targeted al-Shabbab attack, but there is also the problem of being at the wrong place at the wrong time.
Appendix 3

Amnesty International Public Statement - Returns to South and Central Somalia: A Violation of International Law (15 May 2013)

Changes in security situation do not amount to a fundamental, durable and stable change of circumstances in central and southern Somalia at present In August 2012, the eight-year ‘transitional’ period in Somalia ended with the appointment of a new Somali administration, following over 20 years of conflict and state collapse after the fall of the Siad Barre regime in 1991. Since the new administration has been in place, there have been some improvements in security; however at this point, it cannot be considered that these are either substantial or durable.

Civilians persistently face insecurity as a result of the risk of becoming victims of grave human rights abuses, including indiscriminate and targeted violence, rape, killings, as well as extortion. Though it is unclear who is responsible for the attacks in all circumstances, it is widely believed that all parties to the conflict, including the SNAF and allied militia, as well as al-Shabbab, carry out such attacks.

In light of the above, the organization has no doubt that the security situation within south and central Somalia, including Mogadishu, remains extremely volatile. Lack of authority, discipline and control of government forces and its allied militias means that government forces both fail to provide protection or security for its civilians and are themselves a source of insecurity. Al- Shabbab’s capacity to regain control undermines the notion that the already limited improvements in the security situation will actually endure.

In Mogadishu there is ongoing violence through both indiscriminate and targeted attacks. Al- Shabbab, though weakened, retains influence and despite their diminished capacity is still able to carry out direct attack on civilians and indiscriminate attacks through suicide bombs, improvised explosive device (IED) and grenade attacks. On 5 May 2013, an IED attack targeted a delegation of Qatari government officials killing at least 8 civilians and wounding many others in central Mogadishu. On 14 April 2013, al-Shabbab carried out two large-scale attacks in Mogadishu. One targeted Benadir High Court, where al-Shabbab militia stormed the court. This soon became the scene of a devastating suicide attack, live fire-fights and explosions from an IED. Shortly after, a second IED attack hit a convoy of a Turkish humanitarian organization on the airport road. At least 30 people died in the two attacks, and many more were injured. Among the dead were two lawyers that had represented a woman who was arrested and charged after she had reported she was raped by government forces, and the journalist who interviewed her, in a high profile case which drew international outcry. These attacks serve as a reminder that the armed conflict continues, including in Mogadishu, and that the security situation is neither stable nor durable. On 18 March 2013, a suicide attack took place near the President’s Palace, killing at least eight people, including a journalist, and wounding several others.

Conclusion
Though there have been improvements in the security conditions within Somalia, these remain extremely limited in scope and are both volatile and fragile, with varying intensity between areas and at different times of day. The recent al-Shabbab take-over of Xudur and the devastating attack in Mogadishu on 14 April 2013 demonstrate that improvements in security are neither fundamental, sustainable or durable. While the government controls more of Mogadishu than a year ago when the TFG was in place, their reliance on AMISOM renders them incapable of providing security or protection to their civilians. South and central Somalia, including Mogadishu, remain areas of conflict.

The situation of generalized violence in Mogadishu and in south and central Somalia, both through targeted and indiscriminate attacks is a real risk to civilians. Though some people may have some protection through clan or close family connections, many people, particularly specific categories of people such as female-headed households, single females, children, and families from minority clans, are at heightened risk, due to their specific situation. The recent killing of the journalist returning from exile is an example that those returning face a real risk of serious violence, including death. People in areas under al-Shabbab control are at real risk of killings, torture or other ill-treatment. Conditions in IDP settlements remain dire, with a lack of access to basic services and high levels of violence and sexual violence, often carried out by the very people who are supposed to protect them.








Appendix 4

PRELIMINARY FINDING – ERROR ON POINT OF LAW

1. The appellant is a citizen of Somalia. It is immediately apparent from any consideration of the determination as a whole that the Judge made no reference to any background material save passing references to being supplied with a bundle of country reports. More importantly, there is no reference to the extensive case law developed by the Tribunal over the preceding years. It is difficult to see how a Somali appeal can properly be determined without express reference to the latest country guidance. In this case, the guidance is found in AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC). The guidance may be out of date or it may not properly reflect the circumstances in the case before the Judge but, if so, it still needs to be engaged. I would regard this omission on the part of the Judge as sufficient in itself to render the determination fatally flawed.

2. The guidance summarised in AMM and others includes the following passages:

9) On the assumption that Al-Shabbab’s likely behaviour towards those who transgress its rules is as found in this determination, the position is as “extreme” as the factual basis in RT (Zimbabwe) [2010] EWCA Civ 1285. In the light of RT, a person from an Al-Shabbab area who can show they do not genuinely adhere to Al-Shabbab’s ethos will have a good claim to Refugee Convention protection, once outside Somalia (subject to internal relocation and exclusion clause issues), regardless of whether the person could and would “play the game”, by adhering to Al-Shabbab’s rules. As can be seen from a comparison with Sufi & Elmi, the effect of RT is, accordingly, to take the Refugee Convention beyond the comparable ambit of Article 3 ECHR protection.

15) In assessing the effect of an appellant’s lies (whether to the Secretary of State or a judicial fact-finder), it is unnecessary to construct a prescribed set of steps from the judgments of the Supreme Court in MA (Somalia) [2010] UKSC 49, particularly if they might lead to a “mechanistic” rather than a holistic approach. The significance or “negative pull” of the lie will possibly depend not only on the strength of the background evidence but on whether the lie – looked at in its own terms – is about an issue that is central to the disposition of the appeal. Where a person tells lies about issues which that person thinks are important to their claim but which, because of the passage of time or otherwise, are not, it is open to the Tribunal, given the earlier lies, to approach with caution the person’s evidence regarding matters that are central to the current claim.

In relation to Mogadishu

(1) Despite the withdrawal in early August 2011 of Al-Shabbab conventional forces from at least most of Mogadishu, there remains in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad. Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. The significance of this category should not, however, be overstated and, in particular, is not automatically to be assumed to exist, merely because a person has told lies.

3. The appellant was not found to be credible in relation to a number of matters and those adverse credibility findings are sustainable and stand unless there is material which persuades the Tribunal to adopt a different view. In addition, it was accepted that some of the account was true. Hence it was not accepted that he came from a minority clan or that he experienced persecution in the past. However, it is not disputed his father was a teacher and the family lived and continue to live in Mogadishu.

4. Mr Ouseley relied on paragraph 357:

357. Nevertheless, the evidence before us points to there being a category of middle class or professional persons in Mogadishu who can live to a reasonable standard, in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. A returnee from the United Kingdom to such a milieu would not, therefore, run an Article 15(c) risk, even if forcibly returned. Into this category we place those who by reason of their connection with “powerful actors”, such as the TFG/AMISOM, will be able to avoid the generalised risk. The appellants argued that no such category exists; but we reject that submission. Indeed, the category that emerges from the evidence is wider than the “powerful actors” exception, and covers those whose socio-economic position provides them with the requisite protection, without running the risk of assassination faced by those in or associated with the TFG.

5. Mr Nadeem relied on paragraphs 472 and 598

472. Although having family in the Al-Shabbab area of return may, depending on the circumstances, alleviate the risk, the rotating nature of Al-Shabbab leadership and the fact that punishments are meted out in apparent disregard of local sensibilities mean that, in general, it cannot be said that the presence of family is likely to mean the risk ceases to be a real one.

598. In general, a returnee with no recent experience of living in Somalia will be at real risk of being subjected to treatment proscribed by Article 3 in an Al-Shabbab controlled area. “No recent experience” means that the person concerned left Somalia before the rise of Al-Shabbab in 2008. Even if a person has such experience, however, he or she will still be returning from the United Kingdom, with all that is likely to entail, so far as Al-Shabbab perceptions are concerned, but he or she will be less likely to be readily identifiable as a returnee. Even if he or she were to be so identified, the evidence may point to the person having struck up some form of accommodation with Al-Shabbab, whilst living under their rule. On the other hand, although having family in the Al-Shabbab area of return may alleviate the risk, the rotating nature of Al-Shabbab leadership and the fact that punishments are meted out in apparent disregard of local sensibilities mean that, in general, it cannot be said that the presence of family is likely to mean the risk ceases to be a real one.

6. The issues raised in these passages have not been properly addressed. This is an error of law. However, it has to be said that the passages relied on by Mr Nadeem appear to relate to those parts of the country under the control of Al-Shabbab and, as I understand it, the Secretary of State does not intend a return to those parts.

7. The Judge’s handling of Article 8 was very brief and may require re-examination in greater detail.

8. The decision will have to be re-made. The appellant is to file and serve all documentary evidence upon which he intends to rely (which is to include witness statements and their contents will stand as the evidence-in-chief) by 24 May 2013. No interpreter will be arranged unless the appellant’s representative, no later than 14 days before the hearing, requests one and gives reasons for doing so.