Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: DA/01641/2013
IA/18986/2012

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 April 2016
On 08 August 2016
Prepared 15 April 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MAI
(ANONYMITY DIRECTION MADE)
Respondents

Representation:

For the Appellant: (2 November 2015) Mr I Richards, Senior Presenting Officer
For the Respondent: Mr C Jowett, Counsel, instructed by Albany Solicitors

DECISION AND REASONS

1. In this decision the Appellant is referred to as the Secretary of State and the Respondent is referred as the Claimant.

2. The Claimant, a national of Somalia, date of birth [ ] 1975, appealed against a deportation order made on 9 August 2012. On 9 October 2013 a First-tier Tribunal (IAC) heard the deportation order and asylum appeals. On 17 October 2013 the (IAC) did not uphold a Section 72 NIAA certificate, dismissed the Claimant's appeals on Refugee Convention, Article 2 and 3 the ECHR grounds but allowed the appeal on Article 8 ECHR grounds.

3. Permissions to appeal and cross appeal were given and led to a remaking of the appeal on 15 July 2014 by First-tier Tribunal Judge N Osborne in a panel (the panel) who allowed the appeal on Refugee Convention grounds. The judge made findings of fact but no decision on Articles 2 and 3 ECHR grounds. The decision [D] eventually was challenged. At a hearing on 2 November 2015 that the judge's decisions relating to the Section 72 certificate stood but there was an error of law in assessing the Refugee Convention claim. I was satisfied that a claim under the Refugee Convention or in respect of Humanitarian Protection could not succeed but I invited written submissions from the parties within fourteen days of the date of the decision (8 December 2015) in respect of the Article 3 ECHR claim.

4. The grounds of challenge by the Secretary of State were limited unsurprisingly to the issue of whether or not there was a Convention reason for the Claimant's fears on return of ill-treatment and persecution. The grounds settled by Mr R Hopkin of 20 August 2014 are essentially confined to that issue. There was no challenge to the findings of fact made by the panel.

5. The panel's findings are set out at paragraphs 15 to 21 of the judge's decision [D] which are set out below.

"15. The Appellant does not claim persecution by the state but rather by individuals within it. Where ill-treatment by such individuals is capable of crossing the severity threshold into persecution, the Appellant must also establish that those individuals can be categorised as "actors of persecution or serious harm" pursuant to Regulation 3 of the Protection Regulations.

16. I had the benefit of seeing and listening most carefully to the Appellant as he gave his evidence. Moreover, I had the benefit of seeing and hearing his above-mentioned sister and brother as they gave their evidence. Moreover, I have compared the Appellant's oral evidence with his written accounts given in statement and interview form. Having had that opportunity I state now at this early stage in my findings that I find the Appellant's claim to be credible. Despite appropriately probing cross-examination by Mrs Hibbert on behalf of the Respondent, no material inconsistencies emerged in the evidence of the Appellant or his two siblings. The cumulative effect of all the evidence in this appeal, including the expert evidence prepared by Dr Bekalo who was not cross-examined by the Respondent, is to enhance the reliability of the Appellant's evidence and the veracity of his case. Pursuant to paragraphs 27, 36, 41 of the judgment in R (Iran and Others) v SSHD [2005] EWCA Civ 982, it is not necessary for every factor in the balance to be set out or examined. By way of example only of those factors to which I refer, I note the following.

17. The Respondent accepts that the Appellant is a Somali national and that he is a member of the Isaaq clan and that he was born and lived in Burao, Somaliland. The deceased FA was also from the Isaaq clan. However, the Appellant is from sub-clan Habr Jaalo whereas the deceased was from sub-clan Habr Awal.

18. Mrs Hibbert put to the Appellant that when he lived at [Cardiff], that on 9 January 2003 he had written a letter to the Home Office applying for a travel document to visit Somalia due to illness in his family at home (see document k) as listed above. That letter was put to the Appellant in the oral hearing. He denied having any knowledge of it and asserted that he had not written that letter or signed it. Indeed, he further asserted that it was not his signature. Mr Jowett on behalf of the Appellant submitted that I should compare his signature with his signature on his statement dated 17 October 2012 and his asylum interview. I have indeed compared those signatures. I find that the signature on the Appellant's asylum interview is strikingly similar to the signature on the Appellant's witness statement, whereas both those signatures are starkly different from the signature on the letter dated 9 January 2003 at document k. It follows that I am far from satisfied that the Appellant wrote or signed the letter dated 9 January 2003 whether as claimed by the Respondent or at all. I find that the signatures that appear on the above-mentioned documents indicate that the Appellant did not sign the said letter. To that extent, the Appellant's oral evidence given at the oral hearing is supported by the documentary evidence. His reliability as a witness and his personal credibility is duly enhanced by the documentary evidence which corroborates his oral evidence upon this specific issue.

19. The Appellant accepts that in or about 1997 he killed FA. He owed FA money for khat. After the Appellant made a payment to [FA], he attempted by way of motorcar to run over the Appellant who in response threw a small stone at the vehicle which pierced the windscreen/window, struck [FA] who died following a heart attack. The Appellant promptly visited the police and explained his responsibility for the incident. Before [FA]'s death the Appellant had lived a relatively uneventful and happy life in Cardiff. After [FA]'s death, the Appellant's life has dramatically changed for the worse. The Appellant considers that he will carry the manslaughter with him for the rest of his life; it is a sensitive topic for him; when he was released from prison he felt lost and depressed and he is not comfortable talking to strangers about it. During his trial for manslaughter and after his release from prison he has been attacked by the deceased's family and other clan members. The Appellant carried many scars to his head. He was badly assaulted in prison with knives and was taken for emergency treatment to Canterbury Hospital. The case was reported to the police at that time. The Appellant has found it difficult to come to terms with the fact that he has killed somebody and that this is how he is perceived by others.

20. In an attempt to avoid the deceased's family the Appellant briefly lived with his sister in London and then lived in Swindon where he started work at Royal Mail. Whilst working for Royal Mail in Swindon he was warned that members of the sub-clan Habr Awal were going to go after him and so he left his job and returned to London. When his licence allowed him to return to Cardiff he did so and found work as a shop assistant in a store.

21. However in 2004 and in 2008 the above-mentioned incidents occurred because of attacks upon him. In closing submissions Mrs Hibbert, Home Office Presenting Officer for the Respondent, asserted that there was no evidence other than the Appellant's word that he had been assaulted as claimed. She further submitted that there was nothing to connect the claimed assault in prison with the deceased's family.

However, I have been referred by Mr Jowatt for the Appellant to pages 23 and 24 of the Appellant's bundle. Those pages encompass a prisoner's formal complaint under confidential access. In short, it is a copy of the Appellant's complaint about an assault (or two) upon him whilst he was held at HMP Canterbury. The complaint refers to an earlier incident where one of his assailants tried to strangle him in his cell and even locked him inside his cell. Additionally, he was assaulted when he was repeatedly punched to the head, kicked numerously and stabbed with knives, sustaining injuries which were so extensive that he required emergency treatment at Canterbury Hospital. The Appellant claims that this was an unprovoked attack on Friday 3 August 2012. The governor responded (on page 24) that the matter had been referred to Kent Police who are carrying out a full investigation. The issue of the meeting of the Appellant and his alleged assailants was because it was Eid prayers which is a very important date in Islam. The two offenders were escorted to prayers by an officer who remained with them. The governor's response is that the Appellant's safety was not an issue. However, the fact that a complaint was made and that it related to two Muslim assailants does nothing to undermine the Appellant's claim that the unprovoked assault was connected with the deceased's family/clan. On balance, and bearing in mind, as I must, the low standard of proof that has to be applied throughout in the assessment of this appeal, I find that the Appellant has been threatened by the family of the deceased and that from time to time since the death of the deceased, the Appellant has been further threatened and/or in the alternative physically attacked. The documentary evidence at pages 23 and 24 of the Appellant's bundle amounts to corroboration of the Appellant's account upon this issue which further enhances the Appellant's reliability as a witness, his personal credibility, and the credibility of his claim to be the subject of continued interest from the deceased's family/sub-clan by reason of a blood feud."

6. The panel also assessed the expert evidence given by a Dr Bekalo, who was accepted as a genuine expert witness as was his evidence. Dr Bekalo included his view on the Claimant's criminal acts in the United Kingdom, the extent to which there was risk on return to Somalia and any available domestic protection to which he could have recourse; see [D22 -31]. In addition, the panel accepted that Dr Bekalo's report was balanced and focused and accepted the assessment of risks the Claimant might face on return to Somalia, from retaliation or revenge. The Panel also accepted the evidence from persons in the Somali community in Cardiff and how news travelled quickly within that community and abroad. The panel accepted without qualification, even if there were some but not material inconsistencies, three witnesses who gave evidence on those matters and the consistency with Dr Bekalo's evidence are set out at paragraphs 32 to 34 of the decision.

7. It is therefore notable that all the evidence relating to the events coming from the Claimant, whose credibility and reliability was not materially challenged on the issue, together with that of Dr Bekalo and the three witnesses overwhelmingly supported the claim that the Appellant reasonably feared he would be killed. If he returned to Somalia, there would be a bounty upon his head and revenge and retribution amongst Somalis was not to be lightly dismissed irrespective of the general issues of clan feuds and revenge attacks which have led to decades of anarchy in Somalia.

8. None of those findings were challenged by the Respondent and the Presenting Officer conducted "probing cross-examination" of the Claimant and two siblings which did not disclose any material inconsistencies. Dr Bekalo was not cross-examined and her evidence was regarded as enhancing the reliability of the Appellant's evidence and the veracity of his claim.

9. As the panel indicated [D 18] the reliability of the Claimant as a witness and his personal credibility was enhanced by documentary evidence which corroborated his oral evidence.

10. Having given time for the representations to be made I decided that I would informally extend time for receipt of the representations. In the event, although I did not receive the document at the time, Mr Jowett on behalf of the Claimant made representations, dated 21 December 2015, which were received at some time in the Upper Tribunal in either December 2015 or mid-January 2016. However, the correspondence did not become attached to the file until some time in early April and its earlier arrival was not notified to me.

11. There is nothing to indicate the Secretary of State has made any response to my invitation to comment upon the Article 3 ECHR issue. Thus I have given a very substantial amount of time for a reply to be served either as intended or as a fact arising through the delay in receipt of representations.

12. At the hearing on 2 November 2015 remarks were particularly addressed to Article 3 ECHR. Article 2 had previously been raised. In the submissions made by Mr Jowett, dated 21 December 2015, he argued that a reasonable inference from the facts found was that not only did the Claimant face death but no less than ill-treatment contrary to Article 3 ECHR. In the event, having considered this issue with the papers as whole, it seemed to me that the judge's findings on risk in Somalia for the Claimant to return, engaged both the risk of substantial ill-treatment but also particularly the risk of death. I was satisfied no prejudice could arise to the Respondent from me considering Article 2 ECHR as well without a further opportunity to comment.

13. In the circumstances on the basis of the evidence, particularly the Bekalo report and the judge's findings, I find that the Claimant has shown to that low standard of proof as required in Sivakumaran [1998] ImmAR 97 and Ravichandran [1996] ImmAR 97 as understood through the case of Karanakaran [2000] EWCA Civ 11 that news of his return to Somalia would follow him together with the real risk, not least in the light of past attempts in the United Kingdom of there being attack upon him, or his death or serious ill-treatment and injury.

14. Therefore on the evidence I find that there is no sufficient protection within Somalia which the Claimant could realistically have recourse. I find that internal relocation is not available to the Claimant given the general chaos in civilian life within Somalia and the lack of any system of domestic protection and the risk of revenge attacks. I find there is a real risk of a revenge attack which would not be resolvable by payment of a blood money payment because first, the Claimant could not afford it and, secondly, such previous attempts to settle the matter have failed.

15. I concluded that there is not efficient enforcement within Somalia to protect the Appellant from such likelihood of attack. I can form no view of the extent to which clan protection is available but that has not featured as a basis why the Claimant would not be at risk on return. In the circumstances internal relocation is not a reasonable option because of the identified state of Somalia, the lack of infrastructure and governance of any identifiable area the Claimant could relocate to.

16. In these circumstances I find the Appellant faces the real risk of ill-treatment contrary to Articles 3 and 2 of the ECHR. There is no sufficient protection to which he can have recourse and internal relocation is not a realistic or reasonable option.

Decision

27. The Original Tribunal's decision cannot stand. The following decision is substituted. The appeal on Article 2 and 3 ECHR grounds is allowed.

DIRECTION REGARDING ANONYMITY - RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

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

Signed Date 27 July 2016

Deputy Upper Tribunal Judge Davey

P.S. I regret the delay in promulgation has been caused by the case file being misplaced