Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10260/2015

THE IMMIGRATION ACTS

Heard at Belfast
Decision & Reasons Promulgated
On 7 November 2016
On 30 November 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

GAID AHMED GAID BUDAWI
(NO ANONYMITY ORDER MADE)
Appellant
and

secretary of state for the home department
Respondent

Representation:
For the Appellant: Mr Smyth, instructed by R P Crawford & Co, Solicitors
For the Respondent: Mr S Whitwell, Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge A Grimes, dismissing his appeal under the Nationality, Immigration and Asylum Act 2002 against the respondent's decision made on 30 June 2015 to refuse his claim for protection.
2. The appellant's case is that he is a Somalia, and a member of the Ashraf clan from Haaway in the Lower Shabelle Region which is still under Al-Shabaab control. He was, however, born in the United Arab Emirates that his parents had lived until 2009. In 2006 he had gone to the Philippines to study nursing and lived there for nine years but had not be allowed to work there as a nurse on completion of his training. He did, however, work in Manila from March 2012 until October 2014 when his visa was cancelled and he had to leave the Philippines. Applications for a Visa to return to the UAE were refused and on 7 November 2014 he travelled to Somalia despite a warning not to do so from his parents; his father had been killed by Al Shabaab on 21 April 2014.
3. On return to Somalia, the appellant went to live in his home village, Haaway, where he met his wife for the first time; his case is that they were married prior to that by proxy. On 24 November 2014 he was approached by members of Al Shabaab to join them as they knew of his medical skills agreed to do so but said that he needed some days to look after his sick mother to which they agreed after the intervention of village elders but the following day he left the village, travelling to Mogadishu, where he travelled to Belfast via Dubai.
4. The respondent accepted that the appellant is a Somali national; that he had lived in Abu Dhabi as claimed; and, that he spent time studying in the Philippines. She did not, however, accept that he was a member of the Ashraf clan or that he had returned to Haaway village in November 2014 or that Al Shabaab had made any attempt to recruit him. She considered that, even if his claim were accepted, it would be reasonable to expect him to return to Mogadishu.
5. The judge found that: -
(i) the appellant's credibility was damaged by his entry into the United Kingdom with a passport which was not his [12];
(ii) the appellant had returned to Somalia in November 2014 [15];
(iii) the appellant had failed to establish that he is a member of the Ashraf claim as claimed [16];
(iv) it was not credible that the appellant had not been in contact with his mother since his departure from Somalia in the context of previous contact over a period of nine years while she was in the Philippines;
(v) That there are a number of inconsistencies in the appellant's account which damaged his credibility [18]:
(vi) The appellant had not demonstrated that his father had been killed by Al Shabaab as claimed [19];
(vii) The appellant had not given a credible explanation for the decision to give medical treatment in the manner claimed; and, she was not satisfied that the appellant had returned to his parents' village or that had been approached and threatened there by Al Shabaab as claimed [20], [21];
(viii) having had regard to MOJ & Ors (return to Mogadishu) Somalia CG [2014] UK UTD 00442 (IAC) [24], she was not satisfied, even if the appellant claimed to be accepted, that it would be unduly harsh to expect him to relocate to Mogadishu [23], as he may have family members there [26], may have clan associations to call upon Mogadishu [26], bearing in mind the findings of fact already made [ 28]; a significant factor in this case being that he would have the prospects of securing a livelihood Mogadishu is a healthy young man who is educated, is a qualified nurse and has experience working abroad and he had not turned he could not access the economic boom in Mogadishu in the circumstances;
6. The judge then dismissed the appeal concluding that there was no risk of the appellant suffering serious harm in Somalia contrary to articles 2 and 3 of the Human Right Convention or article 15 (c) of the Qualification Directive.
7. The appellant sought permission to appeal on the grounds that the judge had erred: -
(i) In concluding that the appellant is not from the Ashraf clan, in that she had not given due weight to the appellant's answers at interview in which he had given about the clan [1]; and, it was procedurally unfair to hold the errors made at interview against the appellant when he was questioned about these in court [2];
(ii) In attaching weight to a number of inconsistencies which, when properly viewed, were not in fact inconsistencies [3];
(iii) In improperly attaching weight to the appellant not mentioning in his Screening interview that his father had been killed by Al-Shabaab [4];
(iv) in improperly speculating as to the appellant's circumstances on return to Mogadishu, contrary to the requirement provided for in MOJ for a careful assessment of all the circumstances [5] - [7];
(v) and, had she found that the appellant is a member of the Ashraf clan, she would have been as a matter of law, bound to find that it would be unduly harsh or unreasonable to expect the appellant to return to Mogadishu.
8. I heard submissions from both representatives.
Consideration of the grounds of challenge
9. In addressing the grounds, I note that certain of the adverse findings as to credibility are not challenged. These are findings made at [12] in respect of entering the United Kingdom using a passport which was not his; and, at [17] in respect of a lack of candour in respect of a lack of contact with his mother. I deal with the grounds in turn.
(i) Findings in respect of membership of the Ashraf clan
10. While it is correct that the judge did not at [16] address directly the correct information about the Ashraf which the appellant give in interview, it is evident from the decision at [6] - [10] that the judge was aware of the appellant's case, and [11] that the respondent did not accept he was from the Ashraf. More particularly at the beginning of [16], she noted that the appellant had answered questions about the Ashraf in interview. There is nothing sufficient to demonstrate that she was not aware of the correct answers.
11. It was open to the judge to make specific references to the error about which group of the Ashraf were dark skinned, and to note, in particular, the failure to address the issue about the Ashraf's special religious status. Given that this was raised in the refusal letter, it was incumbent on the appellant to address it. It was also open to the judge to note the appellant's explanation - that they spoke very little about the tribe - and to reject it as inconsistent with the father speaking out against Al- Shabaab. That answer is also inconsistent with the appellant being able to name lots of the sub- clans in interview, yet be unable to explain the descent from the Prophet which is core to the Ashraf as a clan.
12. Contrary to what is submitted in the grounds at [1] and [2], there is no failure to give due weight, nor is there any procedural unfairness; the issues about the two errors was identified clearly in the refusal letter. It was for the appellant to address them.
(ii) The inconsistencies with regard to the marriage
13. There is some merit in Mr Smyth's submission that the judge erred in respect of the details of the marriage, but only on the basis that it is submitted that the marriage was carried out by proxy. It is, in my experience, relatively common for Islamic marriages to be made by proxy, and that is implicit in what he said at [63] - that he had not needed to be present at the marriage. The judge's comments at [18] about how long it had been since he had married must be seen in the context of that apparent mistake of fact, and are, to that extent infected by that error.
(iii) improperly attaching weight to a failure to mention facts in a Screening Interview
14. It is correct that the judge noted [19] that the appellant had not mentioned in his Screening Interview that his father had been killed by Al-Shabaab. As Mr Smyth submitted, the appellant did mention in his screening interview at [9.7] that his father was deceased. He did in his interview at Q.117 that Al-Shabaab had killed his father, but that his mother had not told him exactly why (Q.118), and that (Q.120) that he just knew that his father was talking to people, trying to help them in the village, and that Al-Shabaab are against people who do the right things. I consider that the judge was entitled to consider that this explanation was vague, and to draw inferences adverse to the appellant from his oral evidence that his father had spoken out against Al-Shabaab [19]. I do not consider that it can be said that the judge, in reaching that conclusion, drew inferences adverse to the appellant from a failure to mention in his screening interview that his father had been killed; it is simply part of the narrative of how the account of the father's death developed. It is sufficiently clear that the adverse inference flows from the embellishment, and not any failure to mention the killing in a Screening Interview.
15. It is to be noted that the grounds do not challenge all the adverse findings made by the judge. There is no effective or proper challenge to the adverse credibility findings made at [17] and [20].

(iv) improper speculation as to family and clan support
16. While I accept that the judge may have erred in respect of drawing inferences adverse to the appellant in respect of his marriage, that was only one factor which lead to the adverse credibility finding, and as noted above, several of those factors were not challenged. Further, the findings in respect of which I find no error in the judge's findings go to the core of the claim. That cannot be said of the marriage chronology, and there is insufficient indication in the decision to show it affected the overall finding materially.
17. While I accept, as Mr Smyth submitted, that large parts of the appellant's account of living, studying and working abroad were accepted, it does not follow that the judge erred in disbelieving other parts of the claim, and she gave adequate and sustainable reasons for those conclusions.
18. With respect to the challenges made to the judge's findings at [28] with respect to availability of funds to the appellant, it is notable that the judge found that the appellant had not be truthful about his contacts with his mother. It was thus open to her to conclude that the appellant had not, given her other findings, been truthful about which funds were available to him.
19. In these circumstances, it was open to the judge not to accept the appellant's claim that he had neither family nor clan on whom to rely if returned to Mogadishu. It was for him to prove that aspect of his claim to be at risk on return, given the guidance given in MOJ.
20. It cannot be argued that, in this context, the judge's assessment of the risk was insufficient or unlawful. The grounds fail to identify any real error in the assessment of risk, and there is no direct challenge to the finding at [29] that the appellant would have the prospect of securing a livelihood in Mogadishu, given that he is a healthy young man, is a qualified nurse, and has experience of working abroad. That was, and is, in the context of MOJ, an important factor, capable of bearing significant weight. In that context the judge was manifestly entitled to conclude that the appellant could be expected to relocate to Mogadishu where he would not be at risk, and that it was reasonable to expect him so to do. She was also entitled not to accept the appellant's claim to be of Ashraf ethnicity.
(v) Ashraf ethnicity is determinative of the reasonableness of relocation to Mogadishu
21. Given that, for the reasons set out above, I find that the judge gave adequate and sustainable reasons for not accepting that the appellant is Ashraf, this ground requires little independent consideration.
22. Further, and in any event, and following the findings in MOJ, it cannot be argued that being of Ashraf ethnicity is determinative of the reasonableness of relocation to Mogadishu. That is particularly so where, as here, the appellant in question has valuable skills, and it has not been shown he would be without support. In any event, the latter is not determinative; what is required is a proper analysis of the factors which would indicate that a person returning would not be able to avail himself of the positive changes, as is required by MOJ.
Conclusions
23. For the reasons set out above, the decision of the First-tier Tribunal did not involve them making of an error of law and I uphold it.

SUMMARY OF CONCLUSIONS
1 The decision of the First-tier Tribunal did not involve the making of an error of law. I uphold it.

Signed Date: 29 November 2016

Upper Tribunal Judge Rintoul