Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09873/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 12th December 2016
On 27 January 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

I.M.A
(ANONYITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

An Anonymity Direction is made.

Representation:
For the Appellant: Broudie Jackson and Cantor Solicitors.
For the Respondent: Mrs Aboni, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. The appellant in the First-tier Tribunal proceedings is the one who is appealing to the Upper Tribunal. Consequently, the parties are named as before.

2. He sought protection in February 2013.He claimed he is a national of Somalia, born in June 1992. He said he is from the Tumal Bajuni clan and was a fisherman. In 2012 his home was raided by Al Shabab and his brother taken away. The appellant managed to hide. The villagers decided to enforce Sharia law. When the appellant opposed this his home was attacked. His family relocated to another village. He there began a relationship with a girl who became pregnant. The relationship was discovered in January 2013. Rather than face punishment from the villagers he fled and travelled by boat to Yemen and then onwards, arriving in the United Kingdom.

3. His claim was refused by the respondent in June 2015. It was accepted he was a Somali national of Bajuni ethnicity. It was not accepted his village was targeted by Al Shabab and his brother taken away; it was not accepted the villagers decided to enforce Sharia law; and his claimed sexual relationship was not accepted. Reliance was placed upon the country guidance decision of MOJ and others (Return to Mogadishu) Somalia CG [2014] UKUT 00442.Taking the claim at its highest the respondent concluded the he could live in Mogadishu and the authorities there could provide adequate protection.

The First tier Tribunal

4. His appeal was heard by Judge of the First-tier Tribunal Shimmin at Bradford in March 2016. The claim was dismissed on all grounds. The judge accepted the claims made by the appellant and concluded he would be at risk in his home area from Al Shabab and other islanders. However, there would be no risk if he relocated to Mogadishu and it would not be unreasonable to expect him to do so.

The Upper Tribunal

5. The application for permission to appeal was on the basis the judge erred in law in suggesting the appellant could relocate to Mogadishu. This was in light of the country guidance decision in MOJ and on the basis he was a minority clan member with no links to the city or support. The judge had consider the country guidance case and referred to the appellant being fit and healthy and that he had not specifically claimed to have used all of his mother's jewellery to fund his travel. It was contended that the appellant had said he had given all of the jewellery to the agent in order to fund his travel and the point was not disputed at hearing. It was also pointed out that in the appellant's statement he said the same. The judge had referred to the appellant `returning' to Mogadishu though the application suggested should be read as `relocate'.

6. Permission to appeal was granted on the basis it was arguable the judge erred in concluding the appellant could relocate to Mogadishu given the finding he is from a minority clan: has never lived in Mogadishu: and the appellant's evidence that he has no funds left.

7. The respondent issued a rule 24 response contending that the grounds amount to nothing more than a disagreement and states the appellant would have access to funds through the returns package and would have a livelihood is a fisherman. If an error of law were found, the respondent sought to introduce information indicating there was a large Badjununi population in Mogadishu.

8. At hearing the appellant's representative referred to the points made in the application for leave. In response, the presenting officer contended that the decision was consistent with the country guidance and that the appellant would benefit from the reintegration package available and he was a young man who could avail of the economic opportunities that now existed. In response, the appellant's representative said that the country information the respondent sought to rely on would only be an issue if an error of law were found in which case they would need time to prepare a response. It was pointed out that the information pre-dated the decision of MoJ. The point was also made that if the relocation package were considered sufficient then no appeal would succeed.

Consideration

9. The first point I would make is that nothing turns on the judge's reference in paragraph 40 to the appellant `returning' to Mogadishu rather than relocating there. I believe this was simply a slip and neither party has sought to argue this. There is no suggestion elsewhere in the papers or in the decision that the appellant had any prior connection with Mogadishu. The slip was likely occasion because the head note of MOD (ix) refers to someone returning to Mogadishu.

10. The reasons for refusal letter does adequately engage with the issues arising. Notably, it accepts the appellant is a Somali national of Bajuni ethnicity. It does not contest the claim the appellant was a fisherman from the island of Chula. What is not accepted is the claim that Al Shabab came onto the island and took his brother away in 2012 or that the villagers agreed to enforce sharia law. The claim of a subsequent attack upon the family home was not accepted and followed from this that the family did not relocate to another island as claimed. His claim of a sexual relationship was also rejected.

11. The immigration judge considered all of these contended issues and accepted the claim: referring to the appellant giving a consistent and detailed account, without embellishment or exaggeration. The judge considered the challenges to the claim as weak. This demonstrates that the judge was engaging with the evidence and was even-handed. The respondent has not sought to challenge these findings. Rather, the issue is in relation to the question of his relocation in light of the country guidance decision of MOJ and Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442.

12. The country guidance decision refers to the changes which have occurred in Mogadishu and that Al Shabab are no longer a force there. A civilian would not be at risk of persecution or risk of harm in Mogadishu because of the conditions there or for having claimed protection in the United Kingdom. The risk of being caught up in an attack could be reduced by the avoidance of possible targets.

13. Head note(ix) refers to the situation of someone returning to Mogadishu with no family or close relatives to assist. It says that a careful analysis must be made of all the circumstances. The decision refers to factors which are not exclusive. Amongst those relevant factors where the persons family or clan associations to call upon for help and their access to financial resources. Another factor was their prospects for obtaining employment. Another factor would be the support that might be available from abroad. Reference was also made to the person's ability to support themselves whilst in the United Kingdom and why their ability to fund the journey to the West no longer enables them to secure financial support on return. The head note summarises the position by saying it will be for the person facing return to explain why they could not benefit from the economic boom. There is reference then to the category of individual with no clan or family support; without remittances and was no real prospect of employment who will be at risk.

14. The country guidance decision clearly contemplates an enquiry as to why, having obtained funds for the journey, similar support would not be available on return. In the appellant's case he said he sold his mother's jewellery. This would be a finite resource. There is reference in the grounds to the appellant's asylum interview:

`Q119 how much did pay agent-gave him gold
`Q 120?... where from-my mother
`Q123 so, you are a businessman, yet don't know value of gold you dealt in money, value, explain-it was a lot, don't know value of it, it's an antique old thing.

The last reference would suggest he is referring to a single item. There is an a reference apparently to the evidence given in cross-examination:

What take with you when you left?- jewellery
Whose? - my mother's
Why?-I didn't have anything . She gave me something to help me .
How could jewellery help - gold and silver would help me to go somewhere where I would be safe .
How would it help? - to sell and get money
did you sell? - no
why not ?- person who was going to help me said give me jewellery...
How from Yemen to here? Plane
How much was that-jewellery I gave him brought me here
How much jewellery did you have?-many

15. His original statement was in May 2013. A second statement is dated 23 March 2016, presumably for use in the First-tier hearing. Paragraph 9 reads:

... I have no savings of my own. I use my mum's gold to help me leave the islands... I have none of that left, and nothing in Somalia to return to and have no way of getting any sort of funds.

16. The viability of living in Mogadishu was an issue and part of that involves consideration of his financial resources. The judge at paragraph 35 went through the factors set out in the country guidance decision. The appellant had been absent from Somalia for a relatively short. It was accepted it was unlikely he would have clan assistance. However, he would be able to support himself through work. It was accepted there would be no remittances from abroad.

17. The judge referred to him using his mother's jewellery to fund his travel and commented `(he) has not specifically claimed that he has used all his mother's jewellery '. However, his statement would suggest however there was no gold left. In that sense, arguably, it was incorrect to say he had not claimed to have used all of the jewellery. It seemed clear the case being made by the appellant was that he would have no assets by way of the remnants of his mother's jewellery to start life afresh in Mogadishu.

18. While there is an arguable issue in relation to the judge's comments about him not specifically saying he had none of his mother's jewellery left are correct I do not find this would amount to a material error. The judge has gone through a number of factors. Some were accepted in the appellant's favour and some factors raised that support the viability of relocating to Mogadishu. The financial package from the respondent is a relevant factor. The package in itself would not defeat any claim made as the package is only meant to cushion the transition and give a person time to establish themselves. The judge makes the point the appellant could obtain work as a fisherman or fish seller and that he is young fit and healthy. He has not been out of the country so long that it would have serious problems readjusting. The judge refers to the economic opportunities in Mogadishu which is well documented in the country information.

19. It is my conclusion therefore that the judge's conclusion that relocation to Mogadishu is sustainable and is consistent with the country guidance case. The factors set out in the head note are not meant to be an all-inclusive checklist but are a guide to relevant factors. It is clear the judge balanced all of the issues for and against the appellant in line with this.

Decision.

The decision of First tier Judge Shimmin dismissing the appeal shall stand. No material error of law has been established.

Deputy Upper Tribunal Judge Farrelly

An Anonymity Direction is made. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify them. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of Court proceedings.