Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/11703/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 September 2016
On 6 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

MOHAMMED [A]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Mellon (Counsel instructed by Asylum Aid)
For the Respondent: Ms Z Ahmad, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant whose date of birth is 6 December 1997, is a citizen of Somalia. He appeals against a decision made by the First-tier Tribunal (Judge Lucas) ("FTT") who dismissed his appeal on asylum grounds and under the Qualification Regulations 15(c).

2. That decision was promulgated on 20 June 2016.

3. The appellant entered the UK on 1 January 2015 as an unaccompanied asylum seeking minor and was accepted by the UK from transfer from Holland under Dublin III. He claimed asylum on that date, his screening interview was conducted on 6 January 2015 in Arabic, and his substantive interview was conducted on 23 July 2015 in Somali.

4. The factual background was accepted by the respondent namely the appellant's nationality as Somali citizen, the account of his life in Saudi Arabia and Yemen, his membership of the Reer Hamar clan, his account of being attacked in the Yemen by Houthis and that his father was kidnapped by Al Shabaab in 2010 after he was deported back to Somalia. The respondent rejected the appellant's claim on the basis that he failed to establish risk on return in MOJ and Others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC).

FTT findings and decision

5. The First-tier Tribunal considered risk on return from [54 - 64] in its decision and reasons. In reaching its decision the FTT concluded that the appellant could relocate to Mogadishu. It found that he was a resourceful person who had managed to settle in the UK notwithstanding that he was displaced from Somalia at a very early age. The FTT found that the appellant would not face significant difficulties reintegrated into life in Somalia on account of his minority clan status. It found no realistic prospect that the appellant faced any threat from Al Shabaab. It found that the appellant on the balance of probabilities the appellant had family members located in Somalia. The appellant had a large extended family in the UK and it was found to be inconceivable that they would not be prepared to support him on return to Somalia. It found that the appellant was clearly able to speak Somali as he had done so during the hearing. The appellant could take advantage of the economic boom in Somalia and did not come within the categories under MOJ. Article 3 ECHR was dismissed on the same basis.

Grounds of Application for Permission

6. The FTT erred in fact by making a finding that the appellant can speak Somali. This was a material error and based exclusively on the FTT's mistaken understanding that the appellant's interpreter was a Somali interpreter when in fact he was interpreting using the Reer Hamar dialect.

7. The FTT failed to conduct a "careful assessment" in line with factors identified in MOJ. The FTT applied the wrong test in terms of length of absence from Somalia, focussing on whether the absence was an insurmountable obstacle. The FTT failed to make findings as to whether the appellant would be able to secure a livelihood on return and having regard to his individual circumstances. The FTT failed entirely to consider the appellant's circumstances on departure and the question of minority clan support.

8. The FTT failed to give adequate reasons and/ or take into account relevant considerations as regards finding that the appellant had family in Somalia. The FTT found that the appellant's mother was living in Hargisa which in fact is in Somaliland not Somalia.

9. The FTT failed to give adequate reasons and /or take into account that the appellant had not been in contact with his mother who had funded his journey to the UK, oral evidence from family and witnesses who confirmed they would not be able to provide financial support and that the appellant had applied for NASS support for basic subsistence.

Permission to Appeal

10. Permission to appeal was granted by Upper Tribunal Judge McWilliam on 10 August 2016 on all grounds. Judge McWilliam directed that the parties would be expected to make submissions re MOJ and Others and SSHD v Abdukadir Ahmed Said [2016] EWCA Civ 442.

Error of Law Hearing

11. At the hearing before me both representatives made submissions. Ms Mellon expanded on the grounds for permission and made reference to her skeleton argument prepared for the First-tier Tribunal hearing in May 2016.

12. Ms Ahmad submitted that the findings made by the FTT were open to him on the evidence available. She cited the references throughout the decision and reasons to the appellant speaking Somali and as such evidence was inconsistent it was open to the FTT to make the finding that he could speak Somali.

13. The FTT had taken into account all the relevant factors in the decision and reasons including length of absence, minority clan membership and involvement of Al Shabaab. The FTT was entitled to conclude that the appellant had some family in Somalia and it did not accept that he would be destitute.

14. Ms Ahmad relied on Said in which it was held that the threshold for Article 3 cases was high and it could not be met by this appellant.

15. Ms Mellon responded by clarifying that the appellant's screening interview had been conducted in Arabic, his substantive interview in Reer Hamar and the hearing in Somali spoken with that dialect.

16. It was important to take into account that the respondent had not disputed any of the factual aspects of the appellant's claim. Whilst the FTT had in general terms considered some of the risk factors in MOJ there was a failure to give clear findings and reasons having regard to this particular appellant given his factual background and circumstances.

Decision

17. At the end of the hearing I gave my decision that there were material errors of law in the decision and reasons which I set aside. In this appeal the details of the appellant's claim were not contested nor disputed by the Respondent and the appeal issue focussed on risk on return. I am satisfied that the FTT failed properly to engage in an adequate consideration of the evidence in assessing whether or not the appellant came within the risk factors identified in MOJ. The FTT appears to have proceeded on a factual misunderstanding as regards the ability of the appellant to speak the Somali language, which is a significant issue in terms of his ability to reintegrate in Somalia. I accept the submissions made by Miss Mellon as to language. A further mistake has been made in finding that the appellant has family in Somalia. The evidence given by the appellant was that his mother was in Somaliland and not Somalia, which I accept. I find that the FTT reached a finding that contradicted with the evidence given by the appellant and his witnesses as regards the availability of funding and remittance for the appellant in the event that he were to be returned to Somalia. In short the analysis and assessment conducted by the FTT falls short of the careful assessment required to be made for persons relocating to Mogadishu in circumstances where there is membership of a minority clan with no former links to the city, no access to funds, no other form of clan, family or social support including the absence of means to establish a home and some form of ongoing financial support resulting in living in makeshift accommodation within an NIDP camp where conditions can fall below the acceptable humanitarian standards. The FTT engaged in a generalised assessment only of the factors relevant in MOJ and much of that assessment was based on factual mistakes. Furthermore there was a lack of reasoning given for negative findings in circumstances where the factual nexus and details of the appellant's claim had been accepted by the respondent.

18. There are material errors in law and the decision and reasons is set aside. The appeal grounds are made out. Both representatives agreed that the appeal should be heard de novo. In light of the criticisms of the facts as found by the First-tier Tribunal, I conclude that the proper course of action is the matter to be remitted for hearing de novo at Taylor House (excluding Judge Lucas).

No anonymity direction is made.

Signed Date 6.10.2016

GA Black
Deputy Upper Tribunal Judge G A Black

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date 6.10.2016

GA Black
Deputy Upper Tribunal Judge G A Black