Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10566/2015

THE IMMIGRATION ACTS

Heard at North Shields
On 12 September 2016
Decision & Reasons Promulgated On 16 September 2016
Prepared on 14 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

S. A.
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hussain, Counsel, instructed by Halliday Reeves Law Firm
For the Respondent: Ms Petterson, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom illegally and claimed asylum on 5 February 2015. That application was refused on 22 June 2015, and a decision to remove her from the UK was made in consequence.
2. The Appellant's appeal to the Tribunal against those immigration decisions was heard on 18 April 2016, and dismissed on all grounds by decision of Judge Hillis, promulgated on 26 April 2016.
3. The Appellant was granted permission to appeal to the Upper Tribunal by decision of Judge Robertson of 13 July 2016. Her complaint was that she had identified herself not only as a member of the minority Sheikhal clan (which had been conceded by the Respondent) but also, at interview, as a member of the Gandhershe sub-clan [Q94]. The Respondent had not specifically disputed this claim, and the consequences of this claim appeared to have been overlooked by both the Respondent and the Judge.
4. The Respondent filed a Rule 24 Notice dated 26 July 2016 in relation to the grant of permission to the Appellant, but the content of that notice did not engage with the central point to the Appellant's complaint.
5. Thus the matter comes before me.

The Appellant's ethnicity
6. The Appellant's case in relation to her ethnicity, was as set out at interview, when she stated that she was a member of the Sheikhal clan, and Gandhershe sub-clan [Q94]. The Respondent did not formally dispute either element of that claim, and indeed she formally conceded that the Appellant was a member of the Sheikhal clan. It is accepted before me by Ms Petterson that the Judge was simply wrong to state as he did [48], that there was no evidence before him to identify to which sub-clan she belonged, and that both he and the author of the decision to refuse the asylum claim must have overlooked the relevant part of the Appellant's account as given at her interview.

The Appellant's credibility
7. Mr Hussain accepts that the Appellant was not an impressive witness under cross-examination, and that the grounds offer no challenge to the Judge's conclusions in relation to the weight that he could attach to the Appellant's evidence upon the elements of her claim that were in dispute [31-34, 40-46]. The conclusions that the Appellant had not told the truth about the family members she had living in Somalia, where she had lived in Somalia from time to time, or, whether she was in contact with the members of her family outside the UK, were all well open to the Judge, and they were adequately reasoned, and followed the correct application of the burden and standard of proof. In short the Judge was entitled to conclude as he did that the Appellant was prepared to lie to him, and, that she had done so about material aspects of her case.

Conclusions
8. Country guidance status was withdrawn from the decision of FK (Shekhal Gandhershe) Somalia CG [2004] UKIAT 127 on 18 March 2008 upon the promulgation of HH and Others (Mogadishu armed conflict risk) Somalia CG [2008] UKIAT 00022. The decision of AM & AM (armed conflict; risk categories) Somalia CG [2008] UKIAT 00091 retains country guidance status even now.
9. Both FK and AM deal with the manner in which the Shekhal Gandhershe are perceived as a sub-clan in Somalia, and whether they would be likely to be considered as part of the Benadiri group. Since the decision in Mohamed [2002] UKIAT 08403 the Tribunal has accepted that the Shekhal are a collection of discrete sub-clans, and that the Shekhal Gandhershe are ethnically distinct from other sub-clans of the Shekhal, and that historically they have not been protected by, or affiliated to, the Hawiye. Ms Petterson accepts before me that there has been no adjustment to that position in the country guidance decisions that have been promulgated since AM.
10. Unless the Tribunal were in a position to reject as untrue the Appellant's claim to be Gandhershe, to conclude that she had lied about that sub-clan membership, and that she was in truth a member of a different sub-clan of the Shekhal as the Respondent had conceded she was, then the Tribunal should on the appropriate standard of proof have accepted that element of her claim. The Tribunal's approach ought then to have been to resolve the disputed primary facts, and then to assess the risk of harm faced by the Appellant upon return to Mogadishu airport as a result of that ethnicity.
11. In this case the Appellant would return to Mogadishu airport as a lone woman (since she admitted to having no male relative in the UK who would accompany her on return). She would upon arrival be likely to be perceived to be Benadiri by virtue of her membership of the Gandhershe.
12. Accordingly the Appellant's position as such should then have been assessed through the lens of the guidance to be found in AMM & Others (conflict; humanitarian crisis; returnees) Somalia CG [2011] UKUT 445, MOJ & Others (Return to Mogadishu) Somalia CG [2014] UKUT 442, and Said [2016] EWCA Civ 442.
13. Regrettably there is no express reference to any country guidance within the decision. This omission prompted Mr Hussain to argue that the appeal ought to be remitted to the First Tier Tribunal. However, having considered that submission at some length with him, I am not satisfied that this submission was well founded, or that this would be a pragmatic course to follow. The findings of primary fact (which Mr Hussain accepts are not challenged as unsafe, or, inadequately reasoned) did not depend upon any assessment of the Appellant's evidence in the context of a particular set of country guidance, but rather followed from the Appellant's own inconsistency and lack of credibility as a witness under cross-examination. The findings of primary fact that the Judge made are adequate in my judgement to permit the assessment of the Appellant's position upon return to Mogadishu airport through the lens of the guidance to be found in MOJ, upon the assumption in her favour that she is a member of the Shekhal Gandhershe as claimed, rather than some other sub-clan of the Shekhal.
14. To return to live in her home area of Afgoye in safety the Appellant would first need to be able to travel there in safety as a woman who was returned to the Mogadishu airport alone, and as one who would be perceived to be a minority clan member/Benadiri.
15. Afgoye is less than 50km from Mogadishu, and the area is considered sufficiently safe for IDP camps to have been created in the Afgoye corridor and for NGOs to operate there. The Judge found, and again this is not the subject of challenge in the Appellant's grounds, that Al-Shabaab was forced out of Afgoye in 2011, and that it was no longer in control of the area [38]. Indeed the Appellant is recorded as having conceded this point before the Judge, and Mr Hussain did not suggest to me that the Judge was mistaken in this respect.
16. The Judge rejected as untrue the Appellant's claim that she was not in contact with either her family members in Somalia (who include her two sisters and their respective families, her husband, her mother, and her daughter), or, her uncle in the USA who was said to have financed her journey to the UK [41-44]. There is no challenge to this finding.
17. Accordingly, it is difficult to see why the Appellant would be unable to make arrangements for male members of the family to travel from Afgoye to meet her upon arrival at Mogadishu airport and then accompany her upon the journey to return to her home in Afgoye. Having returned home to Afgoye there is no basis upon which it could be inferred that she was at risk of persecution for a convention reason, or a breach of her Article 3 rights. The Judge rejected as untrue her claim to be perceived within Afgoye as a government spy. Her past ability to run her own business, and, the ability of her extended family to live in safety in Afgoye since her departure from Somalia, point firmly to a lack of any real risk of persecution for a convention reason, or, a breach of her Article 3 rights upon her return to Afgoye.
18. Even if the Appellant were to take the view that it would not be safe to return to Afgoye, she would in my judgement be in a position to relocate in safety to Mogadishu following the guidance to be found in MOJ. There is no clan based violence in Mogadishu, and no clan based discriminatory treatment. Thus her membership of the Shekhal Gandhershe would not, of itself. give rise to a real risk of harm to her within Mogadishu.
19. The Appellant would also be able to request her immediate family of husband, mother and daughter to relocate to Mogadishu with her. That assumes of course that they have not already relocated to that city, as the Judge plainly suspected was the case, given the problems with her evidence.
20. The Appellant would thus either have the help and support of members of her family who were already based in the city, or, who could settle there with her. It is also reasonable to infer that she would also have the financial help and support of the family members that she has living outside Somalia, such as the uncle in the USA who she identified as having paid for her travel to the UK. Given the credibility issues with her evidence there is no basis to infer in her favour, as Mr Hussain suggested I should, that this individual would not be able to provide significant financial support to her in Mogadishu.
21. The Appellant advanced no credible explanation to the Judge below as to why she would be unable to access the economic opportunities generated by the economic boom in Mogadishu, particularly given her historic ability to rune her own business in Afgoye. I can see no basis upon which it could properly be inferred that she would be unable to do so.
22. In the circumstances the Judge did make an error of law in his decision to dismiss the appeal on all grounds. I set that decision aside and remake it, with the result that the appeal is, once again, dismissed on all grounds.

DECISION
The Decision of the First Tier Tribunal which was promulgated on 26 April 2016 did not involve the making of an error of law that requires that decision to be set aside and remade.
The appeal is dismissed on all grounds.

Deputy Upper Tribunal Judge JM Holmes
Dated 15 September 2016

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Signed

Deputy Upper Tribunal Judge JM Holmes
Dated 15 September 2016