Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11656/2015

THE IMMIGRATION ACTS

At North Shields
Decision and Reasons Promulgated
on 23rd November 2016
on 28th November 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

H.S.A
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: Mrs. M. Cleghorn, Counsel instructed by Halliday Reeves Law Firm.
For the Respondent: Mrs R. Pettersen, Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. The Secretary of State has been granted permission to appeal the decision of First-tier Tribunal Judge Mensah.The decision was to allow the appellant's appeal on the basis of humanitarian protection.
2. Although it is a Secretary of State who is appealing, for convenience I will continue to refer to the parties as they were in the First-tier tribunal.
3. At hearing, it emerged that the appellant had also sought permission to appeal in relation to the refusal of his claim to be recognised as a refugee and that the decision breached his articles 2 and 3. Although this application for leave to appeal predated the present it has not been dealt with.
4. Rather than have the unsatisfactory situation of two separate sets of proceedings in relation to the same case I suggested to the representatives that either I grant permission to appeal on all issues or else the appellant withdraws his pending application. It was agreed between the parties to proceed with the first option.
The First tier Tribunal
5. The appellant claimed he was a Somali national born on 1 October 1989. He said he was from a minority clan, the Reer Hamar. He had lived with his family until the age of 6 when they moved to Yemen. He grew up there and when he became older worked in various manual jobs, including work as a dishwasher, a cleaner and a waiter. He left Yemen on the 11th March 2015 due to difficulties developing there and travelled to the United Kingdom. Here he made a claim for protection. He said he had no remaining family in Somalia.
6. His claim was refused on 13 August 2015 with the respondent questioning his nationality and clan claim.
7. At the hearing before First-tier Tribunal Judge Mensah the presenting officer accepted that the appellant was a Somali national and a minority clan member. The judge accepted the appellant had left Somalia at the age of 6 and he was from the minority Reer Hamar clan. The judge heard evidence from three uncles the appellant had in the United Kingdom to the effect that they were unable to provide any financial support. The judge found their evidence to be credible.
8. The judge concluded that if the appellant were returned to Mogadishu he would not have support there and there would be no available funds from the United Kingdom. As a minority clan member the majority clan members would be unlikely to employ him over their own clans. The judge found that he would be in the position of a displaced person and vulnerable to further displacement with out even basic provisions. The judge referred to country information which indicated that displaced and homeless individuals had been forcibly evicted from Mogadishu. The judge concluded that given his absence from Somalia since the age of 6 and the lack of support mechanisms he could face living in circumstances that fell below that which is acceptable in humanitarian protection terms.
The Upper Tribunal
9. Permission to appeal was granted on the basis it was arguable the judge failed to correctly apply the guidance given in MOJ and others(Return to Mogadishu) Somalia CG [2014] UKUT 00442 IAC and the approach of the Court of Appeal in Said [2016] EWCA Civ 442 in relation to the threshold for humanitarian protection claim based on destitution.
10. At hearing Mrs R.Pettersen submitted that the respondent did not accept he would be required to live in an IDP camp. I was referred to the guidance in MOJ and Others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 to the effect that it was for a claimant to establish why they could not benefit from the economic boom in Mogadishu. It was said returnees were more likely to obtain employment than those that had never left. She submitted there was no reason why his family could not support him from here. Reference was also made to the voluntary assistance scheme.
11. Mrs. Cleghorn referred me to paragraph 26 of the decision of First-tier Tribunal Judge Mensah to the effect that the appellant would have no family support and no resources to rely on. She pointed out that a minority clan member was unlikely to be employed by a majority clan at the expense of a fellow clan member. I was also referred to the country information which indicated those in the IDP camps were targeted. She submitted there was no material error of law beyond that the appeal should also have been allowed on article 3 grounds. She pointed out that the judge's factual findings had not been challenged.
Consideration
12. The argument being advanced replicate those recorded at paragraph 24 of Tribunal Judge Mensah's decision.
13. The facts found by First Tier Tribunal Judge Mensah are covered by head note (ix) - (xii) of MOJ and Others (Return to Mogadishu) Somalia CG [2014] UKUT. Head note (xi) is particularly germane :
"It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms."
14. On the findings made all of these features are present. The absence of family support in Mogadishu was accepted. His uncles' evidence that they cannot support him was accepted.
15. It was argued by Mrs R.Pettersen that the judge failed to factor in the returns package that would be available. However this provides only temporary support.
16. The unknown question is whether the appellant would be able to obtain employment. The appellant did work in Yemen and stated he had some Arabic. The country guidance decision refers to an economic boom in Mogadishu and that people returning from abroad are obtaining employment at the expense of those who never been away. However, the economic boom has to be viewed in the context of a country which is rebuilding itself after many years of war. The notion that people returning from abroad are better able to secure employment may be premised on the belief that those who left showed initiative and adaptability. Those who have been abroad may have acquired new skills.
17. In the appellant's situation he was living in the Yemen in a refugee camp in low paid employment. The country information indicates that the majority clan members would favour their own clans in giving out work. Given the facts found by the judge I see no error of law in the application to the country guidance case. It was open to the judge to find that the appellant was entitled to humanitarian protection. Consequently, the respondent's appeal does not succeed.
18. I turn to the appellant's claim that his appeal should have been allowed on the basis of his article 3 rights. Paragraph 339C of the immigration rules provides that a the person will be granted humanitarian protection if they do not qualify as a refugee but there are substantial grounds for believing if returned they would face a real risk of suffering serious harm. Serious harm is defined as including unlawful killing, torture or inhuman or degrading treatment or a serious and individual threat to civilian life by reason of indiscriminate violence.
19. MOJ and Others (Return to Mogadishu) Somalia CG [2014] UKUT found that the level of civilian casualties has reduced since 2011 and at present would not amount to an article 15 C risk. Rather, the conclusion that the appellant is entitled humanitarian protection would be founded on the risk of inhumane or degrading treatment. This indicates the similarity between humanitarian protection on this basis and article 3.
20. In SSHD -v- Said [2016] EWCA Civ 442 a Somali from a majority clan who had lived most of his life in the United Kingdom was being deported following two convictions of rape. He could not benefit from article 15 because of his offending and the issue was whether his removal would breach his article 3 rights. The Court of Appeal analysed the country guidance decision and at paragraph 26 Lord Justice Burnett stated the fact the person might be returned to very deprived living conditions could not, save in extreme cases, lead to a conclusion that removal would violate article 3. At paragraph 31 Lord Justice Burnett referred to the suggestion that the likelihood of ending up in an IDP camp would be sufficient to engage the protection of article 3 but concluded that this cause and effect is inconsistent with the article 3 jurisprudence. His Lordship stated the position was accurately stated in paragraph 422 of the country guidance case:
"The fact that we have rejected the view that there is a real risk of persecution or serious harm or ill treatment to civilians or returnees in Mogadishu does not mean that no Somali national can succeed in a refugee or humanitarian protection or Article 3 claim. Each case will fall to be decided on its own facts. As we have observed, there will need to be a careful assessment of all of the circumstances of a particular individual."
21. It was a matter of fact for First Tier Tribunal Judge Mensah to decide if the appellant faced an article 3 risk on return. The distinction between article 3 and humanitarian protection in the circumstance was a fine one. However my conclusion is that this was a matter for the judge and I find no material error of law in the fact the judge found on humanitarian protection and not human rights. The judge's conclusion in relation to the Refugee Convention is entirely consistent with the country guidance case.
22. In conclusion, I find no material error of law in the decision of First Tier Tribunal Judge Mensah. This was a carefully prepared decision in which clear findings of fact were made. The conclusions reached by the judge were open to the judge and are consistent with the country guidance case. It was a matter for the judge to decide whether on the facts the appellant faced an article 3 risk or was entitled humanitarian protection. The rejection of his claim to be a refugee was entirely consistent with the country guidance case and facts found.

Decision.
No material error of law has been demonstrated. Consequently, the decision of First Tier Tribunal Judge Mensah allowing the appeal on humanitarian grounds only shall stand.

Deputy Upper Tribunal Judge Farrelly