Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07654/2015

THE IMMIGRATION ACTS

Heard at RCJ Belfast
Decision & Reasons Promulgated
On 9 November 2016
On 15 December 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

MRS RAHMA BASHIRU MOHAMED
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S McTaggart, Counsel, instructed by Killenwarke Solicitors
For the Respondent: Mr S Whitwell, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge S Gillespie, promulgated on 17 December 2015 dismissing her appeal against the decision of the respondent made on 17 April 2015 refusing her claim to protection and to remove her.
2. The appellant is a citizen of Somalia and is accompanied in the United Kingdom by two of her daughters born in 2009 and 2012. She is of Reer Hamar origin, her family having left Mogadishu in 2009. The family had at that point relocated to Bucale.
3. Whilst living there, in 2014, four members of Al-Shabaab came to the house saying that they wished to take her eldest daughter, then aged 13, to marry. They also wanted to recruit her oldest son and her nephew to fight for them, saying that they would return on 29 September 2014 to do this. At the time her husband was working on a farm away from the family home which he frequently did for some two to three months at a time. She then arranged for the children to leave in a lorry, in the hope that they would be safe but had not heard from them since.
4. On 29 September 2014 Al-Shabaab returned to the family home and, on learning that the three children were gone, was told that if they were not back the next day she would be killed. She then took her two youngest children and went to a home of a friend and, using her telephone, contacted her husband's brother in the USA so that he could make arrangements to get her out of Somalia. He financed an agent who arranged flights from Somalia.
5. The appellant's case is that she has no family in Mogadishu, had no prior occupation other than housewife and mother, has a real fear of being killed or her children being killed and does not believe that she can survive in Mogadishu given her lack of financial means and family support which would result in her ending up in an IDP camp.
6. The respondent's case is set out in the Refusal Letter dated 17 April 2015. The respondent accepted that the appellant is a Somali; that she is a member of the Reer Hamar clan; that she had, as claimed, been subjected to a serious sexual assault at the age of 14; that it was plausible she had left Mogadishu in 2009; but she did not accept, given the evidence about the manner in which Al-Shabaab behaves, that they would have warned her that they wanted the children but then come back at a time some days later. It was, however, accepted that she had been supported by her husband who worked on a farm for some two to three weeks at a time but that it was unclear how she could have lost all contact with him and she concluded that the appellant was not a lone female or that she had no support in Somalia.
7. The respondent did not accept that it was credible that Al-Shabaab would have given her four days' notice given how they operated.
8. Having had regard to Country Guidance in MOJ and Others (Return to Mogadishu) Somalia CG [2014] UKUT 00442, she concluded that as the appellant had family to return to in Mogadishu, in particular her husband, she would not be at risk on return nor was she at risk on account of her membership of the Reer Hamar clan. She considered also that the appellant had no well-founded fear of Al-Shabaab and that in any event, having had regard to MOJ and Others that it would not be unduly harsh or unreasonable for to relocate to Mogadishu as she has a husband and two other children there and there is no reason why her husband cannot continue to support her on her return.
9. The respondent considered also it would not be a breach of the United Kingdom's obligations under Articles 2, 3 or 8 of the Human Rights Convention to return her to Somalia.
10. The judge heard evidence from the appellant as well as submissions from both representatives.
11. The judge found that:-
(1) The appellant had not shown she did not have means of financial support available to her, noting her answer at interview [Q80] that her brother-in-law had borrowed money from relatives to fund her departure, discounting her latest claim that he had no other relatives (see decision at [15]), given noting that her solicitors had corrected an error at Q92 but not at Q80; and respondent's assertion that if the brother-in-law had provided funds from himself and from other family members, the appellant had other means of financial support available to her, was a "sustainable assertion;"
(2) The appointment card from the British Red Cross had been produced post- decision to deal with the claim that it was unclear why, having managed to get a message, funding and support from her brother-in-law in America she would not have got information or a message to her husband that she was leaving the family home;
(3) The claim with regard to the way in which Al-Shabaab required the handing over of the daughter, son and nephew was incredible [43]; and that [44] the respondent's submission that it was not credible that she would send the children away in a lorry without planning how she would make contact with them again;
(4) There had been some customising of the appellant's evidence to address risk on return to Mogadishu as identified in MOJ [47] there being "no evidence that her husband is no longer living in Somalia or incapable of being reunited with her in Mogadishu;"
(5) Having had regard to the background evidence in MOJ, and
"Taking into account the unreliability of most of the factual averments made by Mrs Mohamed, which I find to have been made to show that she is at critical risk on return to Mogadishu, I determine that the conclusions reached by the Secretary of State are tenable with regard to this family's removal to Mogadishu. As a result, I find myself having to dismiss her appeal."
12. The appellant sought permission to appeal on the grounds that the judge had erred:-
(1) In not giving sufficient reasons to allow the appellant to understand why her claim had not been accepted; in particular, at [42] it was unclear what the judge accepted or did not accept;
(2) In failing to cite [43] objective material indicating why the account of the appellant could not be true at least to the lower standard applicable given her credibility on other issues that have already been accepted by the respondent;
(3) In misdirecting himself at [44] in that simply because a submission is "valid" it does not mean that the account given by the appellant is invalid or untenable, the judge was therefore not applying the low standard of proof properly;
(4) In failing properly to apply the country guidance, in that he failed to factor into account the relevant circumstances of the appellant as found.
13. On 20 January 2016 First-tier Tribunal Judge McDade granted permission stating:-
"The grounds of application for permission in appeal in my judgment make only one sustainable ground of appeal, namely that in paragraph 45 of the judge's decision he sets out the considerations to be made when deciding if it is safe for an individual to be returned to Mogadishu, but then makes no finding on the appellant's particular circumstances. This is an arguable error of law."
14. There does not, however, appear to have been any compliance with the decision in Ferrer on this point. The ground is not expressed to be limited nor is there any indication that the proper forms were sent to the appellant explaining that she had the right to renew to the Upper Tribunal the application for permission on the grounds which were not admitted by Judge McDade.
15. In her Rule 24 notice dated 4 February 2016 the respondent avers that the judge's credibility findings at paragraphs [40] to [44] were sustainable and it was clear that he did not find the appellant to be credible. It is averred also that the judge had at [48] found the appellant was not credible, agreeing with the Secretary of State's reasons.
Discussion
16. This is a case in which a large part of the appellant's case was accepted. What was not accepted is that the appellant had been approached by Al-Shabaab, or that they had sought to take her children and nephew or, they had returned, leaving her unharmed, and allowed her to leave the area. It was not accepted either that the appellant's husband could not support her.
17. These issues have particular resonance given the guidance in MOJ and Others in the headnote and in particular at paragraph (ix).
18. Contrary to what Mr McTaggart submitted I consider that the judge did at [43] give adequate and sustainable reasons for doubting the credibility of the appellant's account about how Al-Shabaab behaved towards her. In the light of the background information about how Al-Shabaab behaved, as referred to in the refusal letter, and on which the judge relied, this is a sustainable conclusion. It is also the case that what is said at [44] is, properly understood by reference to Ms Campbell's submissions, a finding that is also sustainable.
19. With regard to the issues set out in paragraph [41] again I consider that this was sustainable in that the judge gave adequate reasons for doubting the appellant's explanation as to why she did not have relatives in Somalia. That is a conclusion open to him on the material. Similarly, at [42] the judge gave adequate reasons for doubting the appellant's account as to why she was not in contact with her husband. That, in the context of the respondent's case as put in the refusal letter into considerable detail, and to which the judge refers at [41] is a sustainable conclusion.
20. While I do have concerns regarding the use of the phrase "the submissions made on behalf of the Secretary of State have preponderant force in this case" and what is said at [48] as they appear, on first reading, to indicate that the judge, rather than making findings for himself, was considering whether the Secretary of State's analysis was one open to her, an approach applicable only in an application for judicial review, those concerns are met, I do not consider that, when considering the decision as a whole, that is what the judge did. While he could have expressed himself more clearly, it is nothing more than an observation that he had found merit in the respondent's submissions as to the appellant's claims and credibility.
21. Whilst I note also Mr McTarggart's submission that the judge appears to have erred at [37] in referring to paragraph 2.1.16 of the guidance as opposed to 1.2.16 that is not a matter raised in the grounds of appeal. Nor, for that matter, am I satisfied that it would have been a material point; the judge had given adequate and sustainable reasons for concluding that the applicant would not be a single female head of a household on return to Somalia.
22. It must also be noted that the judge does not make any specific findings after setting out the risk categories at [45]. As Mr McTaggart submitted, there is little indication, in this context, that the judge applied MOJ. But that of course is only in relation to the factors that need to be considered if the judge was satisfied that this exercise had to be undertaken in any event.
23. There is, I consider, merit in Mr Whitwell's submission that this decision must be understood in the light of the very clear and detailed refusal letter. It is established law that the extent to which reasons are adequate is dependent on the circumstances. Here, it was sufficiently clear from the refusal letter what the appellant had to prove. It is also clear in that context that the judge did not accept parts of the appellant's evidence and, having heard from her, reached the same conclusions as the Secretary of State. His conclusions were, in the context of the appellant knowing what she had to show, adequate and sustainable.
24. I consider also that having found that the appellant was not a lone female and had not shown that she had no support to rely upon on return to Mogadishu, that, properly applying MOJ, the judge did not need to go through the matters set out at [45]. For that reason, any failure to consider those factors is not an error capable of being material.
25. For these reasons, I am not satisfied that any of the grounds are made out. I conclude that the decision of the First-tier Tribunal did not involve the making of an error of law and I therefore uphold the decision.
SUMMARY OF CONCLUSIONS
1. The First-tier Tribunal did not involve the making of an error of law and I uphold the decision

Signed Date: 14 December 2016

Upper Tribunal Judge Rintoul