Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00898/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 January 2017
On 11 April 2017

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

Secretary of State FOR THE HOME DEPARTMENT
Appellant
and

SHIRWA HAASHI
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr K Dobe, Counsel of Arora Lodhi Heath Solicitors

DECISION AND REASONS

1. The Secretary of State appeals with permission to the Upper Tribunal against the decision of the First-tier Judge who allowed the appeal of Mr Haashi against the deportation order of 18 August 2015. I shall hereafter refer to Mr Haashi as the appellant, as he was before the judge, and to the Secretary of State as the respondent, as she was before the judge.

2. The only issue in this case is that of Articles 2 and 3 of the European Convention on Human Rights. The judge found against the appellant on all other issues, and there is no challenge to those findings. However she allowed the appeal on the basis set out at paragraph 53 of her decision. Having noted earlier in her decision such matters as the fact that the appellant is a member of a majority clan, that he would have family support from his wife on return to Somalia as she could send him remittances and therefore he would not be destitute and ought to be in a position to find employment for himself, noting that the appellant’s mother had returned to Somalia twice, in 2012 and 2014, the judge took into account two Human Rights Watch Reports and an Amnesty International Report. These were noted at paragraph 52. The evidence was that Al Shabab was still in operation and targeted civilians, retaining control over large swathes of territory, including Mogadishu. The security situation remained volatile in government-controlled towns and the government had failed to protect citizens. The judge considered that an appellant such as Mr Haashi who had left Somalia as a very young child would be unfamiliar with how to “play the game” of survival under Al Shabab as he had no recent experience of being in the country and would stand out most likely as being Westernised. It seemed to the judge that Mogadishu might not be the safe commercial haven which was alleged to be the case in the refusal letter and the appellant could be placed in unacceptable danger if returned there with no family support, unknown clan support, no friends, no means of knowing how to survive and being obviously Westernised, and would be at risk on return from Al Shabab and/or others who supported that group. Accordingly she allowed the appeal under Article 3. She said in paragraph 55 that her decision was based upon current background evidence that Al Shabab had not yet been eradicated from Mogadishu and that the appellant was at risk on account of being unduly westernised and with no real knowledge of the country having left when he was aged about 4 years.

3. In her grounds of appeal, all of which were considered by the judge who granted permission to be arguable, the respondent argued that the judge’s decision went against the country guidance in MOJ [2014] UKUT 00442 (IAC), quoting from the head note in that case, argued further that it had been said in that case that being “Westernised” was not a risk factor, referring to the guidance in SG (Iraq) [2012] EWCA Civ 940 that country guidance decisions were to be followed unless there was very strong grounds supported by cogent evidence adduced justifying not doing so, and this guidance had not been followed by the judge. Reference was made to the fact that the judge had found that the appellant’s wife would be able to support him via remittances and his mother had been able to travel back to Somalia twice in 2012 and 2014 and these factors were not considered in the risk assessment.

4. In his submissions Mr Tufan referred to a Human Rights Watch document from January 2014 which had been before the Tribunal in MOJ and whose effect he said was quite similar to the evidence considered by the judge from Human Rights Watch. There had been no material escalation of Al Shabab’s activities in Mogadishu. The Amnesty International Report was to similar effect. He argued that the judge had not had enough to go against the country guidance and that the earlier versions of the reports the judge had considered had been addressed in MOJ as could be seen from the annex to that decision. Mogadishu was found to be a booming town and the appellant was well educated. It did not appear that his marriage was other than an Islamic marriage and therefore did not give rise to any EEA dimension.

5. In his submissions Mr Dobe relied on and developed points made in his skeleton argument. He argued that the decision was supported by reputable credible evidence from Human Rights Watch and Amnesty International. He referred to particular pieces of evidence concerning Al Shabab and its activities in both of those reports. The picture painted by the reports was less positive than that set out in the country assessment in MOJ some two years earlier. The judge did not err in relying on this material. Although she had found that the appellant would not be destitute if he returned to Mogadishu as he would receive remittances from his wife, that was not inconsistent with a finding that he would be in unacceptable danger because of the presence and threat of Al Shabab in Mogadishu. Both were valid findings. The judge did not err in relying on more up-to-date information concerning the situation in Mogadishu. The decision was otherwise sound and on these points as elsewhere the judge had weighed the evidence and applied the law and displayed sound judgment. There was no error of law in the decision.

6. By way of reply Mr Tufan argued that organisations such as Human Rights Watch and Amnesty International, valuable though they were, applied a cautious approach often different from that of the courts, and in that regard he referred to the final paragraph in the January 2014 Human Rights Watch Report that he had produced where the organisation had simply disagreed with the decision of the Court of Human Rights in what appeared to be the decision in KAB v Sweden, as evidence of the different standards employed.

7. I reserved my decision.

8. In MOJ the Tribunal said among other things, at paragraph 399:

“We conclude that, absent some aspect of a person’s profile making him of particular adverse interest to Al Shabab or to the authorities as a possible supporter of Al Shabab, there is not a general risk for a civilian, simply by being present in the city, of serious harm as a result of indiscriminate violence. Nor is it established that there are substantial grounds for believing that a person returning to Mogadishu would face a real risk of being subject to treatment contrary to Article 3 of the ECHR”.

The Tribunal considered that there would need to be a careful assessment of a person’s overall circumstances since there was a higher level of risk for persons such as police officers or government officials who were not “ordinary citizens”. At paragraph 407 the Tribunal said the following:

“407 (a) Generally, a person who is ‘an ordinary civilian’ (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 15(c) of the Qualification Directive or Article 3 of the ECHR. In particular, he will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabab or by Al Shabab as an apostate or someone whose Islamic integrity has been compromised by living in a western country.”

The Tribunal went on to note that there had been durable change in the sense that the Al Shabab withdrawal from Mogadishu was complete and there was no real prospect of a re-established presence within the city. It was open to an ordinary citizen of Mogadishu to reduce further his personal exposure to the risk of collateral damage by being caught up in an Al Shabab attack not targeted at him by avoiding areas and establishments which were clearly identifiable as likely Al Shabab targets and it was not unreasonable to expect him to do so. If a person had no nuclear family or close relatives in the city it will be necessary to assess the circumstances, including the circumstances in Mogadishu before their departure, the length of absence from Mogadishu, family or clan associations to call upon in Mogadishu, access to financial resources, prospects of securing a livelihood, whether that be employment or self-employment, availability of remittances from abroad, means of support during the time spent in the United Kingdom, why his ability to fund the journey to the west no longer enables an appellant to secure financial support on return. The onus is on a person facing return to Mogadishu to explain why he would not be able to access the economic opportunities produced by the “economic boom”. It was clear, as could be seen for example from paragraph 377 that there are daily attacks being carried out in Mogadishu and there are civilian casualties caused by those attacks. In KAB v Sweden it had been accepted by the Court of Human Rights that civilian casualties remained a daily occurrence yet it had still concluded that there was no general Article 3 risk. In the January 2014 Human Rights Watch Report on Somalia, which was before the Tribunal in MOJ, among other things there is reference to Al Shabab increasing attacks on high profile civilian locales in Mogadishu with scores of civilians having been killed. There is reference to Al Shabab supporters carrying out attacks with improvised explosive devices and grenades and suicide bombings that targeted civilians, particularly in Mogadishu. There is reference to an attack on the main court complex, an attack on the UN compound and an attack on a restaurant. The evidence concerning Al Shabab abuse in the Human Rights Watch Reports to which the judge referred are to essentially similar effect. For example the 27 January 2016 report refers to Al Shabab regularly targeting civilians and civilian structures, particularly in Mogadishu, resulting in numerous casualties, referring to an attack on a hotel in Mogadishu and an attack in Baidoa. Again in the 29 January 2015 Human Rights Watch Report there is reference to Al Shabab regularly targeting for attack civilians and civilian objects, particularly in Mogadishu with reference to a suicide car bomb attack on the United Nations’ convoy near Mogadishu International Airport. This killed at least six civilian bystanders. There is reference also to Al Shabab carrying out deadly attacks in government-controlled areas such as Mogadishu, targeting civilians, including lawmakers and other officials. The Amnesty International Report to which the judge referred refers to civilians continuing to be indiscriminately killed and wounded in crossfire during armed clashes and refers to the fact that Al Shabab retained the ability to stage lethal attacks in the most heavily guarded parts of Mogadishu and other towns, killing or injuring hundreds of citizens. In this regard it is relevant to note the figure referred to at paragraph 380 in MOJ of a likely casualty figure for 2013 being 4,667. It was also said at paragraph 384 that although some Al Shabab attacks had caused large scale casualties, generally the shift to targeted attacks on carefully selected targets had the propensity to cause fewer “collateral” casualties in the shelling exchanges seen during times of confrontation or warfare.

9. Bringing these matters together it cannot in my view be properly concluded that the background evidence before the judge was materially different from that considered by the Tribunal in the country guidance decision of MOJ. This has to be seen in the context of what was said by the Court of Appeal in SG that Tribunal judges are required to take country guidance determinations into account and to follow them unless very strong grounds supported by cogent evidence are adduced justifying their not doing so. I entirely take the point made by Mr Dobe that there is a difference between the appellant’s ability to receive remittances and any threat he might face from Al Shabab, but the essential point is as set out above that the evidence before the judge was not materially different from that considered by the Tribunal in the country guidance case, and as a consequence he erred in law in not following the guidance in SG (Iraq). As a consequence I conclude that she was wrong to allow the appeal on the basis on which she did, and for her decision allowing the appeal under Article 3 is, in light of the country guidance and the absence of cogent evidence going against it, a decision dismissing the appeal under Article 3. The appeal of the Secretary of State is therefore allowed on all grounds.

10. No anonymity direction is made.

Signed Date 7 April 2017

Upper Tribunal Judge Allen