Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05350/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 25 November 2016
On 28 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Rashid [B]
Respondent

For the Appellant: Mr A Mullen, Senior Home Office Presenting Officer
For the Respondent: Mr M D Templeton, of Quinn, Martin & Langan, Solicitors

DETERMINATION AND REASONS
1. This appeal is by the SSHD, but the rest of this decision refers to parties as they were in the FtT.
2. The SSHD sought permission to appeal to the UT on two grounds, but was granted permission only on the second:
Failure to apply country guidance.
Having found the appellant to be a Somali Bajuni, the judge finds that the appellant is a refugee based on membership of this minority clan. No mention is made of MOJ and others (return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) ? which makes clear that there has been a significant change in the relevance of clan membership in recent years, and minority clan members are no longer at risk on that basis alone.
3. Mr Mullen submitted as follows. He accepted that the respondent's refusal letter did not refer to MOJ. The record on file showed that Mr Templeton had made submissions to the FtT based on MOJ. He had no note of relevant submissions by the respondent. The judge cited other country guidance cases to which he did not appear to have been referred and which although still listed were rather dated and to an extent superseded by changes in country conditions in Somalia and by MOJ. Even in absence of submissions from the party who later sought to raise the point, it was an error of law for a judge not to apply relevant country guidance. There was an absence of findings about the consequences of return which went to the essence of the case. The matter required a fairly extensive and complex further consideration of the facts and so could be put right only by a remit to the FtT. The respondent did not accept that even if the appellant might have to pass through an IDP that he would qualify for protection, being a fit and able young man who could be expected to make his own way in Mogadishu.
4. Mr Templeton said that submissions had been made for the appellant based on MOJ, but unfortunately these were not reflected or resolved in the judge's decision. The judge proceeded on the basis at sub-paragraphs 13 (i) and (m) that the appellant had only to establish that he is a Somali Bajuni. Mr Templeton realistically accepted that the judge's approach did not reflect country guidance, and that he was in difficulty in submitting that there was no error of law. He agreed that further resolution should be by way of remit to the FtT. He submitted that in principle the case should go back to Judge Doyle, or at any rate Judge Doyle should not be excluded, because this was not a case of revisiting credibility, but of an objective assessment following on from findings not subject to any legal error and which ought to be preserved. Further consideration would begin from the conclusion that the appellant is a Somali Bajuni. It would be an unnecessary and perhaps a strained exercise to put a different judge in the position of taking up the chain of fact-finding and reasoning from that point.
5. Mr Mullen in reply said that further consideration might raise a series of discrete credibility matters, which should not be resolved by the same judge whose judgement might be affected by the conclusion he had previously reached.
6. I reserved my decision only on the only remaining point in dispute: whether Judge Doyle should be excluded from further consideration of the case.
7. The factual findings of the FtT stand, to the extent that the Judge accepted that the appellant is a Somali Bajuni.
8. The judge's conclusion that the said finding was decisive is excised.
9. The FtT is to decide the case afresh from that point, in light of any further evidence which the FtT may permit parties to introduce; by reference to the appropriate country guidance; and based on further submissions.
10. This is not a fresh appraisal of credibility, so I see no reason why Judge Doyle should not be expected to complete the judicial task involved. The case should be listed before him for that purpose. (If he is unavailable within a reasonable timescale (three months) it may be decided by any other judge.)
11. The decision of the FtT errs in law. It is set aside, and the case remitted to the FtT, to the extent explained above.
12. No anonymity direction has been requested or made.

18 November 2016
Upper Tribunal Judge Macleman