Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: Pa/00712/2015
PA/00976/2015

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Sent to parties on:
On 21 September 2016
On 16 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

N I F
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr Richards, Home Office Presenting Officer
For the Respondent: Mr Paxton, Counsel

DECISION AND REASONS

1. In this appeal I refer to the Appellant as the Secretary of State and the Respondent as the Claimant for ease of reference. The Claimant is a national of Somalia. He entered the United Kingdom on 8 October 2013 using a UK travel document and was refused leave to enter as Immigration Officers at Stansted airport did not believe he was the rightful holder. Removal directions were set for 8 October 2013 but he claimed asylum. On 25 August 2015 the Secretary of State made a decision to deport the Claimant as he was a foreign criminal who had been sentenced to a period of imprisonment of at least 12 months.

2. The Claimant appealed against that decision and his appeal was allowed by First-tier Tribunal Judge Richards-Clarke in a decision promulgated on 16 May 2016. She found that he was a refugee and consequently the exception to automatic deportation in s33 (2) of the UK Borders Act 2007 applied. The Secretary of State sought permission to appeal that decision. Permission was granted by First-tier Tribunal Judge Pedro on 3 June 2016. The Judge found that there were arguable errors of law as the First-tier Tribunal did not have regard to the latest country guidance on Somalia, MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442, and there were arguable errors in the finding that the Claimant's crime did not amount to a serious crime leading to exclusion from humanitarian protection.

The Grounds

3. Ground 1 asserts that the Judge erred in her approach to the return to Mogadishu of a Bajuni. The Judge found that the Claimant was a Somali ethnic Bajuni from Chula and his claim to have escaped from his captors was credible. The Judge then allowed the appeal by reference to KS (Somalia) CG 2004 UKIAT 00271 on the basis that he would be at risk on return as a Bajuni clan member. The Secretary of State argues that in failing to apply the most recent country guidance, MOJ, the First-tier Tribunal had materially erred. The relevant paragraphs of MOJ are set out in the application. The Secretary of State also contends that the case of AAW (expert evidence - weight) Somalia [2015] UKUT 673 (IAC) is also materially relevant and that the Bajuni have a clan presence in Mogadishu.

4. Ground 2 asserts that the Judge's finding that the Claimant should not be excluded from humanitarian protection is completely without legal justification. A twelve month sentence is serious enough to justify automatic deportation and for the public interest to remain even where a person shows an exception under s33 of the 2007 Act.

The Hearing

5. Mr Richards submitted that the Judge only dealt with exclusion from humanitarian protection and did not allow the appeal on humanitarian protection grounds. She allowed it on asylum grounds. In his submission the principal error was glaringly obvious as the Judge made no reference to the most recent country guidance case law and the relevant part was quoted in the grounds. Perhaps the key paragraphs were set out at paragraphs 407 (a) and (g) where the court found that the significance of clan membership had changed and there was no clan based violence in Mogadishu. Even if he was not from Mogadishu this had to be considered and it was not appropriate for the Judge to direct herself to case law from 2004 when there had been a sea change in circumstances. It was as clear a case of material error as there could be and it ought to be set aside. He submitted that it should be reheard in the First-tier Tribunal. Nationality and clan membership were not challenged.

6. Mr Paxton submitted that the grounds were misconceived because MOJ was Article 15 (c) case. The case of KS was still good law. If MOJ was the leading case on Bajuni's it should have been referred to by the Secretary of State. It was a persecution claim and the Claimant was an ethnic Bajuni. The Secretary of State conceded in the refusal letter at paragraph 11 that Bajuni were at risk and there was no need to consider MOJ as it was off point. Article 15 (c) was not presented as an argument and the Secretary of State did not refer to MOJ in the refusal letter. The reason KS was the key case was that it dealt with Bajunis and had not been removed from the website. It was not good enough for the Secretary of State to say it was out of date. The Secretary of State did not present any evidence to show that Bajuni would not be granted asylum and they were regularly granted asylum. Ground 2 was not material.

7. In reply Mr Richards said that KS was authority for not simply risk on return but how to identify Bajuni and there were matters that were still relevant. MOJ was clearly not limited to Article 15 (c) and the decision letter was drafted strongly on the basis that the Claimant was not Somali and that he was from Tanzania. His nationality did not necessarily settle matters against the Claimant because there were other matters to be taken into account. This was a case where MOJ should have been at the forefront of Judge's mind so that consideration should be given to the circumstances of this Claimant.

Discussion and Findings

8. In R and Others v SSHD (2005) EWCA Civ 982 the Court of Appeal endorsed Practice Direction 18.4 which states that any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as a ground for review or appeal on a point of law. The Court of Appeal said that it represented a failure to take a material matter into account.

9. The issue the Upper Tribunal determined in MOJ is set out at paragraph 1 of the decision:
"Whether the current situation in Mogadishu is such as to entitle nationals of Somalia whose home area is Mogadishu or whose proposed area of relocation is Mogadishu to succeed in their claims for refugee status, humanitarian protection status under Article 15(c) or protection against refoulment under Articles 3 or 2 of the ECHR solely on the basis that they are civilians and do not have powerful actors in a position to afford them adequate protection."
10. It is clear that the findings of the Upper Tribunal were neither confined to Article 15 (c) nor to individuals who originated from Mogadishu. The First-tier Tribunal found in this case that the Claimant was Bajuni, as claimed, and that his account was true. She stated at paragraph 38 that it followed from these findings that he would be at real risk of persecution and treatment contrary to Article 3 on return. It was the Claimant's claim that he was from Chula and that he had been captured by the Marehen and told that they wanted him to fight for them. The First-tier Tribunal, having found the Claimant to be Bajuni, treated this as determinative of the question of risk of persecution. In so doing she relied on the case of KS. That case remains country guidance because it is on the Tribunal's website. The Upper Tribunal in that case did not conclude that every member of the Bajuni clan would be at risk of persecution and made the following observations:
"38. In the second category clan membership will normally be determinative but may not be in individual cases where there are features in the claimant's background and circumstances which indicate that the claimant is not in fact at the same risk as that faced generally by other clan members. By way of example where a female member of such a clan marries into a majority clan, she may have protection from her husband's clan. Therefore, subject to the qualifications we have set out, the Tribunal agree with the approach set out in the Secretary of State's letter of 25 July 2003.
39 The present appeal falls within the second category. The issue is whether the appellant is genuinely a Bajuni. Mr Sheikh in his submissions has accepted has accepted that if the appellant is Bajuni and if his account of events in Somalia is correct, then he is entitled to asylum. When assessing a claim to be a member of the Bajuni clan, the issue of language is of considerable importance. The Adjudicator clearly regarded the language spoken by the appellant as a critical indicator of his credibility.
40. It is accepted on behalf of the Secretary of State that if the appellant is Bajuni and if his account of events in Somalia is correct, then he is entitled to asylum."
11. The Upper Tribunal then endorsed previous guidance on how to determine whether a claimant is Bajuni. There has been a sea-change in the situation in Somalia since the decision in KS in 2004. Whilst the guidance may remain relevant to the determination of whether a Claimant is Bajuni it must be read together with the more recent country guidance case law. The Secretary of State's refusal letter did not concede that if the Claimant were Bajuni he would be entitled refugee status. It was accepted in paragraph 14 that the minority clans in Somalia, including the Bajuni had been historically persecuted. The Secretary of State then concluded he was not a Bajuni from Somalia and therefore rejected his claim.

12. The Upper Tribunal in MOJ concluded as summarised at (xii) of the headnote that:
"The evidence indicates clearly that it is not simply those who originate from Mogadishu that may now generally return to live in the city without being subjected to an Article 15(c) risk or facing a real risk of destitution. On the other hand, relocation in Mogadishu for a person of a minority clan with no former links to the city, no access to funds and no other form of clan, family or social support is unlikely to be realistic as, in the absence of means to establish a home and some form of ongoing financial support there will be a real risk of having no alternative but to live in makeshift accommodation within an IDP camp where there is a real possibility of having to live in conditions that will fall below acceptable humanitarian standards."
13. The Claimant in this case did not originate from Mogadishu and on the undisputed findings of fact of the First-tier Tribunal was from a minority clan. The First-tier Tribunal was obliged in the light of the country guidance to consider whether he could relocate to Mogadishu. It may well be that the First-tier Tribunal was wrong-footed by the absence of reference to MOJ in the refusal letter and the fact that the Secretary of State was unrepresented at the hearing. It may be also that she would have come to the same conclusion notwithstanding the error but it cannot be said that but for the misdirection she would have done so and so the error is clearly material. Since the First-tier Tribunal allowed the appeal on asylum grounds and I found there was an error of law in that decision Ground 2 is not material.

14. In the light of the fact finding required and in accordance with Part 7.2 (a) of the Practice Statements for the Immigration and Asylum Chamber of the First-tier Tribunal and Upper-Tier Tribunal, the extent of judicial fact finding is such that this matter should be re-heard in the First-tier Tribunal. The findings that he is a Bajuni from Chula and that his account of what happened to him is true are preserved.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

I remit the decision to be re-heard in the First-tier Tribunal.

Anonymity
The First-tier Tribunal made an order and I continue that order (pursuant to 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 his family. This direction applies both to the Claimant and to the Secretary of State. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Dated

Deputy Upper Tribunal Judge L J Murray