Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10123/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 8 November 2016
On 11 November 2016

Before

UPPER TRIBUNAL JUDGE GRUBB
DEPUTY UPPER TRIBUNAL JUDGE ARFON-JONES DL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Y S D
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr I Richards, Senior Home Office Presenting Officer
For the Respondent: Mr G Hodgetts instructed by South West Law

DECISION AND REASONS
1. This appeal is subject to an anonymity direction made by the Upper Tribunal in its decision dated 9 September 2016.
2. The claimant (YSD) is a citizen of Somalia who was born on 1 January 1969. He left Somalia in 1997 and thereafter lived in Saudi Arabia and the Netherlands. In 2010, he came to the UK where his wife and children were living and claimed asylum. The basis of his claim was that he was from the Shiidle or Bantu clan and had lived in the Shabelle region of Somalia. He claimed that his bakery had been looted by members of the majority, Abgaal clan in 1992 and that he had been shot in the leg. Thereafter, he left his home area, eventually moving to Mogadishu, before leaving Somalia in 1997.
3. On 1 July 2015, the Secretary of State rejected the claimant's claim for asylum including not accepting that he was a member of the minority Shiidle or Bantu clan.
4. The appellant appealed to the First-tier Tribunal. In a determination dated 1 May 2016, Judge Povey allowed the claimant's appeal under Art 3 of the ECHR. Judge Povey accepted that the appellant would be at risk in his home area in Somalia and that, if returned to Mogadishu, he would be without financial or other support and would be forced to live in an IDP camp in conditions which would breach Art 3 of the ECHR.
5. With permission, the Secretary of State appealed to the Upper Tribunal. The appeal was heard by UTJ Grubb on 6 September 2016. It was accepted by both parties that Judge Povey had found that the appellant was at risk in his home area. The issue was, therefore, one of internal relocation to Mogadishu. The Secretary of State argued that Judge Povey had erred in law in finding that the appellant would be at risk of ill-treatment falling within Art 3 as a result of living in an IDP camp if he returned to Mogadishu.
6. In a decision dated 9 September 2016, UTJ Grubb concluded that the judge had erred in law in allowing the appeal, in effect, under Art 3 on that basis. The full reasons are set out in UTJ Grubb's decision of 9 September 2016 and need not be repeated here.
7. As a consequence, Judge Povey's decision to allow the appeal was set aside and the appeal relisted for a resumed hearing solely to determine whether the claimant had the option of internal relocation to Mogadishu and whether his return there would breach Art 3 or, if not, would in any event be unduly harsh or unreasonable. A number of Judge Povey's findings were preserved in relation to the claimant's clan membership, that he would not be able to obtain clan and family support on return, that he had no real prospect of securing access to a livelihood in Mogadishu and that his relatives in the UK would be unable to provide financial support (see para 45 of the UT's determination).
8. The resumed hearing was listed before the Upper Tribunal (UTJ Grubb and DUTJ Arfon-Jones) on 8 November 2016.
9. At the outset of the hearing, Mr Richards, who represented the Secretary of State, indicated that the Secretary of State no longer sought to contest the claimant's appeal. He invited the Tribunal to allow the claimant's appeal on asylum grounds on the basis that, given the preserved findings, it would be unduly harsh or unreasonable to expect the claimant to relocate to Mogadishu.
10. In the light of that concession, which was entirely appropriate in the circumstances of this appeal, we allow the claimant's appeal on asylum grounds.

Signed

A Grubb
Judge of the Upper Tribunal

Date