Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11452/2015

THE IMMIGRATION ACTS

At Field House
on 15th March 2017
Decision and Reasons Promulgated
on 19th April 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

A.Y
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the Appellant: Mr S. Jaisri, Counsel, instructed by Freemans Solicitors.
For the Respondent: Mr Parminder Singh, Presenting Officer.

DECISION AND REASONS

Introduction
1. Although it is the respondent who is appealing in these proceedings I will continue to refer to the parties as they were in the First-tier Tribunal. The appeal is against the decision of First-tier Judge Higgins sitting in April 2016 who concluded the appellant was entitled to humanitarian protection. That decision adopted the earlier decision of First-tier Judge Bart Stewart of February 2010.
2. The appellant made a claim to protection in 2009. His claim was that he was from the minority Ashraf clan living in Mogadishu. He was employed as an accountant between 1978 until the government collapsed in 1991. In 1987 he married SAJ. His wife went to Ethiopia in 1991 where their son, A, was born. She then returned to Mogadishu with her newborn and resumed living with the appellant. The family left Mogadishu 1993 but the appellant had to return there because his father was too frail to travel. The appellant's wife and son travelling on to the United Kingdom where she claimed protection. This was subsequently granted. At that stage she was pregnant and gave birth to their daughter, S, in the United Kingdom in June 1984. The appellant said his father died shortly afterwards and he was forced to work by the Hawiye militia until early 2009 when he was freed by Al Shebab. He resumed his life in Mogadishu and was subsequently contacted by his wife. Arrangements were made through an agent for him to travel to the United Kingdom where he was reunited with his wife and children.
3. The respondent did not believe the claim, taking the view that the appellant in fact was Ethiopian.
4. His appeal against the decision was heard by First-tier Judge Bart –Stewart. The judge concluded the appellant was indeed a Somali national from the minority Ashraf clan. The judge doubted whether he had remained in Somalia after 1991 and did not accept his claim about having been enslaved by the militia. The judge was satisfied there was a risk for the appellant if returned to Somalia on account of being a minority clan member. Apparently however the asylum claim was not allowed on the basis removal directions were for Ethiopia where he faced no risk. His appeal was allowed on article 8 grounds. His wife had been granted refugee status and she and the children had British citizenship. It was not considered reasonable to expect them to live in Somalia.
The First tier Tribunal
5. First-tier Judge Higgins pointed out that the situation in Somalia had changed radically since First-tier Judge Bart –Stewart’ decision. The refusal letter had made reference to the country guidance decision of MOJ and others( return to Mogadishu) Somalia CG [2014] UK UT 0044 and concluded that an ordinary civilian such as the appellant would not be at risk in Mogadishu. He was not assisted by paragraph 276 ADE because the respondent did not see significant obstacles to his reintegration. Furthermore, his two children were now adults and he had not provided evidence to show that his relationship with his wife with genuine and subsisting.
6. In the grounds of appeal medical issues were raised, with the appellant complaining of type II diabetes and back pain and depression. The judge heard from the appellant and his wife but not their children. Statements from the children had been supplied. They were students.
7. First-tier Judge Higgins did not find the appellant's evidence credible and did not accept he returned to Somalia after 1991. It was acknowledged at the hearing that the appellant was living apart from his wife but he maintained they had regular contact. The judge was not satisfied about the nature or extent of the relationship and did not find that they enjoyed family life together. The judge commented on the fact that the children had not attended to give evidence. Whilst accepting the appellant had significant disabilities the judge did not accept he was dependent upon his children and did not find family life existed between them for the purposes of article 8.
8. The judge considered return to Mogadishu. It was accepted he no longer had close family members there. The judge concluded that as a member of a minority clan, there was little realistic prospect of clan assistance. The judge also referred to the appellant's health conditions and concluded there was no prospect of him securing employment in Mogadishu. The appellant's wife has been reliant upon State benefits and would not have the resources to send remittances to the appellant. The judge accepted that the appellant did not have access to any funds. The conclusion was that there was a real risk of destitution if returned. The judge concluded there was a real risk on return of him facing inhuman and degrading treatment. Consequently the appeal was allowed on this basis.
The Upper Tribunal
9. The respondent sought permission to appeal to the Upper Tribunal. It was contended the judge failed to make findings on the basic level of finance required to keep the appellant away from destitution. The appellant had referred to having a friend in the United Kingdom who possibly could have assisted him. It was contended the judge erred in suggesting there was little prospect of clan support given the conclusions in the country guidance decision about the Ashraf and their economic and political advances. The appellant's evidence was that his clan had raised money for him in Ethiopia to fund his travel to the United Kingdom. Reference was made in the Court of Appeal decision of SSHD –v- Said [2016] EWCA Civ 442 which requires consideration of the individual circumstances rather than drawing conclusions from a finding of destitution. Permission to appeal was granted on the basis it was arguable the judge failed to apply the correct test when considering the jurisprudence.
10. Mr. Singh referred me to the decisions of MOJ and others (return to Mogadishu) Somalia CG [2014] UK UT 0044 and AAW (expert evidence-weight) Somalia [2015] UKUT 00673 and the benefits of an economic boom in Mogadishu. Reference was also made to the assistance provided by minority clans to members. It was argued the assessment of destitution was flawed as the judge did not carry out an adequate assessment of his likely living conditions or the possibility of remittances being sent.
11. By way of rebuttal, Mr Jaisri referred to the appellant's health issues and contended that he was not in a position to provide for himself. He also referred to his wife's reliance upon State benefit. Regarding support from his friend, it was submitted that this was by way of practical assistance and there was nothing to indicate he was in a position to provide financial support. Whilst the appellant had been financially supported by his clan in order for him to leave Nairobi that was in 2009. The representative also pointed out that investigations were ongoing as to the possibility of the appellant having prostate cancer.
Consideration.
12. The respondent proposed returning the appellant to Mogadishu, Somalia. The First-tier decision granting him humanitarian protection is challenged. There is no challenge to the finding that the appellant is a Somali national of the Ashraf clan who is originally from Mogadishu. His date of birth is given as 30 December 1954. He is believed to have left Somalia in 1991 possibly to Ethiopia, albeit he claims he left in 2009. He is married to a Somali national and they have two adult children. They have been living here since in or around 1993 and have British citizenship. The appellant does not live with them but they continue to enjoy good relations and at paragraph 8 of his statement says that they provide for him. He has long-standing left-sided back and leg pain. There are referral letters dated January 2016 for nerve root injection and physiotherapy. One letter states that he is keen to return to work having been in receipt of Employment and Support Allowance. He also has type II diabetes which of late has been difficult to control.
13. The First-tier Tribunal found that he was significantly disabled and in pain but was not dependent upon his children nor was he in regular contact with his wife. Instead, he received practical help from a friend, J.
14. At paragraph 40 First-tier Judge Higgins found that on return to Mogadishu he would not face a real risk of persecution as a minority clan member.
15. At paragraph 41 First-tier Judge Higgins stated that an individual could turn to his clan for assistance but this will not generally be available to a member of a minority clan. At paragraph 45 the judge concludes that given he is a member of a minority clan there is little realistic prospect of him securing assistance.

Clan support.
16. I have been provided with information from the Canadian Immigration Board dated 2010 about the Ashraf clan. It states they have been largely absorbed into the Benadiri clan. The article refers to them not being so much of clan as an alliance of separate groups. What I take from this is that whilst they are referred to as a minority clan they nevertheless are a significant grouping.
17. MOJ & Ors sets out how the function of clans has changed from protective to supportive. Whilst the support available will vary according to the position of the clan it does not follow that because the clan is considered to be a minority clan, such as the Ashraf, it would be unable to help. I refer to the following quotations dealing with the significance of the clan structure in Mogadishu:
  340 … We find that the evidence relating to Mogadishu does indeed establish a change in the significance of clan from being a protective mechanism to one of social and economic support.
342…for a returnee to Mogadishu today, clan membership is not a potential risk factor but something which is relevant to the extent to which he will be able to receive assistance in re-establishing himself on return, especially if he has no close relatives to turn to upon arrival. There remains an aspect of protection to be derived from clan membership…
343 …while there was no guarantee that help would be available from clan members outside the close family network of a returnee, at least there is more likelihood of such a request being accommodated than if made to those unconnected by the bond of clan membership.
18. The appellant in the subsequent decision of AAW (expert evidence – weight) Somalia [2015] UKUT 00673 (IAC) argued a lack of support as a minority clan member. The appellant there was from the Shanshiya clan, which is a sub clan of the Benadiri . At para 55 the Upper Tribunal stated :
… even if some minority clans have little to offer to those of its members looking for assistance, the Benadari, of which the appellant's clan is a sub-clan, is not in such a position. On the contrary, the economic enterprise of this clan is such that it has created businesses that will inevitably generate employment opportunities and it is not easy to see why this would not be to the appellant's advantage.
19. MOJ & Ors referred to the economic boom that was taking place in Mogadishu. The Upper Tribunal said that it was for the person facing return to explain why they could not benefit. I refer to the following paragraphs :
345.     It is beyond doubt that there has been huge inward investment, large-scale construction projects and vibrant business activity. … The question to be addressed is what, if any, benefit does this deliver for so called "ordinary returnees" who are not themselves wealthy businessmen or highly skilled professionals employed by such people.
346.     According to the respondent, a striking feature of developments in Mogadishu since AMM is the evidence that "huge numbers" of people have returned to Mogadishu, that is said to be indicative of a considerable reduction in levels of violence and improvements in security.,
… The evidence is of substantial inward investment… In particular we heard evidence about hotels and restaurants and a resurgence of the hospitality industry as well as taxi businesses, bus services, drycleaners, electronics stores and so on. The evidence speaks of construction projects and improvements in the city's infrastructure … It does not, perhaps, need much in the way of direct evidence to conclude that jobs such as working as building labourers, waiters or drivers or assistants in retail outlets are unlikely to be filled by the tiny minority that represents "the elite".
The Upper Tribunal rejected the contention that it was only a small elite who benefited from the boom.
20. The head note of the decision seeks to provide a summary but reference to the detailed comments in the body of the decisions set out the position of clan support more completely.
Living conditions.
21. Secretary of State for the Home Department v Said [2016] EWCA Civ 442 concerned the deportation of a Somali national convicted of two counts of rape. He was in his 30s having lived in United Kingdom from the age of 10 or thereabouts and was from a majority clan. He argued article 3 rights would be breached in that if returned he would be destitute have to live in a camp where conditions were harsh. Lord Justice Burnett giving judgement referred to what was said in MOJ & Ors at para 31:
     I entirely accept that some of the observations made in the course of the discussion of IDP camps may be taken to suggest that if a returning Somali national can show that he is likely to end up having to establish himself in an IDP camp, that would be sufficient to engage the protection of article 3. Yet such a stark proposition of cause and effect would be inconsistent with the article 3 jurisprudence of the Strasbourg Court and binding authority of the domestic courts. ..the individual circumstances of the person concerned must be considered. An appeal to article 3 which suggests that the person concerned would face impoverished conditions of living on removal to Somalia should, as the Strasbourg Court indicated in Sufi and Elmi at para 292, be viewed by reference to the test in the N case. Impoverished conditions which were the direct result of violent activities may be viewed differently as would cases where the risk suggested is of direct violence itself.
Error of law
22. I find the judge has misunderstood the country guidance given about clan support. The statement above suggests the judge believed minority clans are not in a position to provide support because they have nothing to offer themselves. The country guidance decision indicates that simply because the clan is from a minority does not mean it cannot still provide assistance. It is my conclusion that First-tier Judge Higgins has made an error of law in the evaluation of potential clan support for the appellant. The decision suggest that an over simplistic view has been taken that minority clans cannot provide support for those without family support.
23. It is my conclusion that the judge erred in concluding the appellant faced a real risk of destitution. Whilst he does have health problems these would not suggest he is incapable of employment. Historically, it was recorded he was an accountant. There is a possibility of office work for instance. There is also the possibility of remittances from the United Kingdom .The judge also applied a cause and effect reasoning which is too simplistic an approach.
Summary.
24. I find there has not been an inadequate consideration of the likely circumstances the appellant would face on return. Because of this, the decision can no longer stand. Given the factual matters which will need to be assessed the matter is remitted to the First-tier tribunal for a hearing. It is left open to him and his advisers as to whether article 8 is to be pursued again.

Decision
The decision of First-tier Judge Higgins allowing the appeal materially errs in law and cannot stand. The appeal is remitted to the First-tier Tribunal for a de novo hearing before a different judge.

Deputy Upper Tribunal Judge Farrelly.

12th April 2017

Directions.
1. The appeal is to be relisted for a de novo hearing in the First-tier Tribunal before any judge except Judge Higgins.
2. The respondent has accepted the appellant is a Somali national from the Ashraf clan who is originally from Mogadishu .
3. It remains open to the appellant and his advisers to pursue a claim based upon article 8 if they so choose.
4. The focus in the rehearing should be on the practicalities of the appellant returning to Mogadishu and establishing himself there. A relevant consideration will be his ability to obtain employment. It would be helpful if his representatives could provide details of the employment he has held in the United Kingdom; any Jobseekers Agreement entered into and any functional assessment carried out for the purposes of ESA,DLA or PIP’s. It remains open to the appellant representatives to organise such medical or other evidence as they feel relevant to the issue of the reasonableness of his return.
5. It would be helpful if some information could be provided about the cost of living in Mogadishu and the comparative value of remittances from the United Kingdom.
6. The appellant’s representatives are to advise if there is a need for an interpreter.

Deputy Upper Tribunal Judge Farrelly.