Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12502/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th October 2016
On 31st October 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

S A D S
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr B Ali, Solicitor Advocate of Aden & Co Solicitors
For the Respondent: Mr Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant was born on 10th October 1997 and is a citizen of Somalia. He arrived in the United Kingdom on 9th October 2013 and claimed asylum shortly thereafter. That claim was refused but he was granted leave to remain until 10th April 2015.

2. The appellant then sought leave to remain on the basis of asylum but that was refused. The reasons are set out in the decision of 18th September 2015. It was proposed to return the appellant to Somalia.

3. The appellant sought to appeal against that decision, which appeal came before First-tier Tribunal Judge Khan on 7th July 2016. The appeal was dismissed in all respects.

4. The appellant now seeks to appeal against that decision on the basis that it was flawed by reason of error of law. In particular it is said that the Judge, in coming to the various findings which were made, conspicuously failed to engage with the expert report prepared by Professor Mario Aguilar of 27th January 2016 and failed also to properly consider the aspect of return.

5. There were perhaps three distinct issues which fell for consideration in this case. The first issue was whether or not the appellant was a member of the Ashraaf clan. It was not accepted by the Secretary of State that he was in the reasons for refusal nor indeed at the hearing.

6. A document from the Somali Humanitarian Aid (UK) dated 4th February 2015 was initially relied upon by the appellant in establishing that he was indeed a member of the Benadiri, Reer Hamar subclan of Ashraaf Hassan. At the hearing those representing the appellant sought to distance themselves somewhat from that letter. It is said that the methodology adopted by that organisation was questionable. Mr Tufan, on behalf of the respondent, submits that it is perhaps because the letter seeks to emphasise that that appellant was in Somalia for most of the material part of the time and not in Ethiopia.

7. Nevertheless the aspect of the appellant's clan membership was also dealt with by Professor Aguilar in his report. There had been an interview which he had conducted with the appellant and various documents were noted, including the letter of 4th February 2015.

8. The Judge, at paragraphs 27 and 28 of the determination, places considerable weight upon the letter, holding it to be adverse to the credibility of the appellant that he sought to distance himself from it. The Judge is somewhat dismissive of Professor Aguilar's conclusions as to clan membership for reasons as set out in paragraph 32. The Judge finds that the expert report does not assist the appellant's case as to his claimed ethnicity but few reasons are given as to why that should be the case.

9. Of more concern is perhaps the second issue, namely the credibility of the appellant's account that he had lived in Ethiopia since the age of 3. The account is not found to be credible or consistent for the reasons as given in paragraph 29 of the determination. Once again, few reasons are given for that finding. Of more significance, however, is that in his report Professor Aguilar sets out in some detail concerning the region around Ndagele Borana and why it was entirely plausible that the appellant and his mother could have resided there without documents for so long. No acknowledgement is made in the Judge's determination as to that evidence as submitted. Whether or not the Judge agreed or disagreed with the conclusions it was incumbent upon the Judge to have considered that material in the overall assessment. I find that the omission to do so is significant. It is also particularly significant given that it was the findings as to where the appellant resided which largely influenced the findings as to credibility.

10. The third concern was that of return. The Judge found that the appellant had fabricated his evidence and that, in any event, the situation and circumstances have substantially changed in Somalia so that he can return without difficulty. It seems to me that that is a wholly inadequate approach to the issue of return. The Upper Tribunal in the case of MOJ, which is the leading case on the issue of return, in paragraph 407, stressed the need for a careful assessment of all the circumstances relating to the return of a person to Mogadishu after a period of absence. A number of considerations are set out in that judgment including the circumstances in Mogadishu before departure; the length of length of absence from Mogadishu; family or clan associations to call upon in Mogadishu; access to financial resources; prospects of securing a livelihood; availability of remittances from abroad and why the appellant could not secure financial support on return.

11. Mr Tufan, on behalf of the respondent, invites me to find that to some extent the findings as to clan membership and residence are immaterial to the real issue of return. He submits that there is ample material to establish that whether the appellant comes from Afgoye, which is near to Mogadishu, or Mogadishu itself, he could return. He invites me to find that adequate consideration was given to the expert report but in any event even if it were not such omissions would not be material to the inevitable outcome.

12. It seems to me, however, that it is a fundamental principle both of fairness and of justice that a determination sets out clearly the reasons why a decision has been arrived at. It is fundamental also that all relevant material and evidence be taken into account in that decision-making process. Clearly, if the appellant has resided since the age of 3 in Ethiopia that may be a relevant factor under MOJ to consider his the ability to return or relocate to Mogadishu. There are a number of elements to his claim which merit proper consideration.

13. I find that no such consideration was given. In the circumstances I find that to be a material error of law such that I set it aside the decision to be remade.

14. Having regard to the Senior President's Practice Direction I note a large volume of evidence to be relied upon and evidence to be given. Credibility is live as are a number of other issues. In those circumstances I deem that it is appropriate for the matter to be remitted to the First-tier Tribunal for consideration de novo.

Notice of Decision

The appeal is allowed to the extent that the decision is set aside to be remade by a Judge of the First tier Tribunal.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 31 October 2016

Upper Tribunal Judge King TD

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal I have considered making a fee award and have decided to make no fee award at present as the appeal process has yet to be concluded.

Signed Date 31 October 2016

Upper Tribunal Judge King TD