Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01955/2016

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 10th April 2017
On 20th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

DAA
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr R. Sharif, of Fountain Solicitors
For the Respondent: Mrs Aboni, Home Office Presenting Officer

DECISION AND REASONS

1. The First-tier Tribunal (“FIT”) has made an anonymity order and for the avoidance of any doubt, that order continues. DAA is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.
2. This is an appeal against a decision and reasons by FtT Judge James promulgated on 6th October 2016 in which he dismissed an appeal against a decision made by the respondent on 11th February 2016, to refuse the appellant’s claim for asylum.
3. It is common ground that the appellant is a national of Somalia. The appellant claims to be of the Ashraf clan. The respondent, in her decision of 11th February 2016, did not accept that the appellant is a member of the Ashraf claim and rejected the appellant’s account of events in Somalia. A summary of the respondent’s reasons for refusing the appellant’s claim is to be found at paragraphs [3] to [11] of the decision of the FtT.
4. The Judge’s findings and conclusions are to be found at paragraphs [40] to [50] of the decision of the FtT. The Judge notes at paragraph [41] of his decision that “The appellant claims to be a member of the Ashraft clan which is a minority clan in Somalia…”. In the same paragraph, the Judge finds that the appellant is a member of the Ashraf clan. Beyond that positive finding in favour of the appellant, it is fair to say that in the paragraphs that follow, the Judge rejects the appellant’s account of events in its entirety. At paragraph [48] the Judge states:
“…In light of all the inconsistencies and inadequate explanations provided by the Appellant I do not find him to be credible and I accept the submission of the Respondent that the narrative relating to his marriage and his difficulties has been raised as an afterthought to bolster the Appellant’s claim.”
5. The Judge went on to consider whether the fact that the appellant is a member of the Ashraft clan, places him at risk upon return to Somalia noting at paragraph [49]:
“….I have noted that the Ashraf clan are not named as a minority group in the Home Office Country Information and Guidance South and central Somalia: Majority clans and minority groups (March 2015)…..”
6. At paragraph [50] of the decision, the Judge finds that being a member of the Ashraf clan will not give rise to a real risk of persecution or ill-treatment in Somalia. He did not accept that the appellant has a genuine subjective fear on return to Somalia.
7. The appellant advances four grounds of appeal. First, having accepted that the appellant belongs to the Ashraf clan, the Judge erred in his conclusion that the Ashraf clan are not named as a minority group in the Home Office Country Information and Guidance as to Majority clans and minority groups. Second, having found that the appellant is a member of the Ashraf claim, the Judge failed to consider, adequately or at all, the risk upon return by reference to the country guidance decision of MOJ & Others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). Third, the Judge failed to make any findings in relation to the appellant’s claim for Humanitarian Protection or in relation to the appellant’s claim that his rights under Articles 2, 3 and 8 of the ECHR will be violated. Finally, the Judge failed to make any findings as to whether the appellant is a member of a particular social group that exposes him to a risk of persecution.
8. Permission to appeal was granted by First-tier Tribunal Judge O’Garro on 27th October 2016. He noted that the Judge, arguably, failed to carry out a careful and rounded assessment of the appellant’s particular circumstances as required by MOJ & Others. The matter comes before me to consider whether or not the decision of the FtT Judge involved the making of a material error of law, and if the decision is set aside, to re-make the decision.
9. On behalf of the appellant, Mr Sharif relied upon the grounds of appeal and submitted that the Judge’s consideration of the risk upon return fails to have any regard to the relevant factors identified in the country guidance decision of MOJ & Others. He submits that the assessment of the risk upon return is also infected by the Judge’s erroneous understanding that the Ashraf clan, is not a minority clan. He submits that the Judge failed to make clear findings as to the appellant’s evidence that he has no family in Mogadishu and that on return, he would have no financial support. The failure to make clear findings are relevant because the country guidance decision of MOJ & Others (headnotes ix) requires there to be a careful assessment of all the circumstances if it is accepted that a person facing a return to Mogadishu after a period of absence, has no nuclear family or close relatives in the city to assist him re-establishing himself on return.
10. Although the respondent has filed a rule 24 response dated 22nd November 2016 opposing the appeal, in reply, Mrs Aboni accepted that the Judge appears to have erred in his belief that the Ashraf clan is not a minority clan. She accepts that that error, may well have infected the Judge’s overall consideration of the appeal. She accepts that the Judge does not appear to have considered and made findings with regard to the support mechanisms that might be available to the appellant upon return, by reference to the appellant’s circumstances. She accepts that the failure to do so, amounts to a material error of law.
11. In light of the concession made by Mrs Aboni, that the decision of the FtT discloses a material error of law, the parties agreed that the matter would need to be remitted for a de novo hearing with no findings being preserved.
12. I note that the Upper Tribunal in accordance with Part 3 of the Practice Statement for the Immigration and Asylum Chamber of the Upper Tribunal is in terms of disposal of appeals, likely on each occasion to proceed to remake the decision, instead of remitting the case to the First Tier Tribunal unless the Upper Tribunal is satisfied that the effect of the error of the First Tier Tribunal Judge has been to deprive a party before the First Tribunal of a fair hearing or other opportunity for that parties case to be put to, and considered by the First Tier Tribunal. The parties agree that the FtT Judge failed to make findings in relation to matters that are material to the assessment of the risk upon return. In the circumstances, I agree that the most appropriate course is to remit the matter to the FtT for a de novo hearing with no findings being preserved.
Notice of Decision
13. The appeal is allowed. The decision of the FtT promulgated on 6th October 2016 is set aside and I remit the matter for a de novo hearing in the First-tier Tribunal.
14. An anonymity direction is made.
Signed Date 12th April 2017

Deputy Upper Tribunal Judge Mandalia

FEE AWARD

The First-tier Tribunal made no fee award. Whether or not a fee award is appropriate, is again a matter for the First-tier Tribunal in due course.

Signed Date 12th April 2017

Deputy Upper Tribunal Judge Mandalia