Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02194/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th March 2017
On 30th March 2017

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

mohamed nur
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Cheng, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Somalia born on 12th August 1969. He appeals against the decision of First-tier Tribunal Judge Chana promulgated on 19th August 2016 dismissing his appeal against the Respondent’s decision to refuse his protection claim on asylum, humanitarian protection and human rights grounds.

2. Permission to appeal was sought on the ground that the Appellant would face a risk on return to Somalia on the basis of the worsening security situation in Mogadishu. It was submitted that the Tribunal should have departed from the guidance set out in MOJ and Others (return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) in relation to the risk to civilians and Article 15(c) harm. At paragraph 7 of the grounds it states:

“The adverse credibility findings made by the Tribunal does [sic] not automatically equate to the Appellant having no ground to fear the country situation. The Tribunal has a duty to nonetheless consider the submissions put before it in relation to the general country situation which can form risk independent of any credibility issues arising.”

3. Permission to appeal was granted by First-tier Tribunal Judge Grimmett on 13th September 2016 on the ground that it was arguable the judge erred in failing to consider whether the current conditions in Mogadishu were such as to entitle her to depart from MOJ as this was an issue raised by the Appellant.

4. In her decision promulgated on 7th November 2016, Upper Tribunal Judge Gleeson found an error of law: “I do find that there is a material error of law in respect of the failure to consider the new country material provided and whether in the light of that evidence MOJ remains reliable country guidance on the Article 15(c) risk in Mogadishu for Somali civilians and the position of IDPs in Somalia and in Mogadishu in particular.” The decision was set aside to be re-made by the Upper Tribunal.

5. The case was reviewed as possible country guidance, but was not listed as such. The appeal was listed for re-hearing before the Upper Tribunal on the matters in issue identified by Judge Gleeson: whether on the current evidence there would be an indiscriminate risk of violence under Article 15(c) such that the country guidance case of MOJ should no longer be followed.

6. There was no challenge in the Appellant’s grounds of appeal to First-tier Tribunal Judge Chana’s credibility findings and no error of law found in relation to those findings. Therefore, there was no need to hear further evidence and the case could be re-decided on the facts found by the First-tier Tribunal. The Appellant was happy for the interpreter to be released and in fact the Appellant himself asked to be excused after hearing the submissions of the Respondent.
7. Mr Jarvis relied on his skeleton argument and his supplementary skeleton argument (in response to the skeleton argument served by the Appellant). He also submitted further evidence to be placed in the Respondent’s bundle, which comprised 438 pages. The Appellant relied on his skeleton argument and witness statement and a bundle of documents comprising 1,423 pages.

Submissions by the Respondent
8. Mr Jarvis submitted that there was no need to look at the situation in relation to IDP’s or employment because the First-tier Tribunal had concluded that the Appellant had family in Mogadishu to whom he could return. He would be accommodated by them and would be able to find work. He relied on MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49. Mr Jarvis submitted that the burden was on the Appellant to show that he did not come from Mogadishu and that he had no connections there. It was not for the judge to come up with alternative explanations. The burden was on the Appellant and he had not told the truth about his links with Mogadishu.
9. The Appellant stated, in his application for a travel document which had been countersigned by his representative from the Help Somalia Foundation, that he was born in Mogadishu. The First-tier Tribunal concluded that the Appellant was born in Mogadishu, he had family there and he would be able to access the labour market. Accordingly, he was not a person who would have to live in an IDP settlement. Further, the Appellant was from the Ashraf clan, affiliated to the Benadiri, who were well-known to be good in business and trade. Therefore, there was no reason to believe that he would not be able to find employment.
10. Accordingly, the only issue before me was whether MOJ was still good law. The Appellant had to show there were very strong grounds, and cogent evidence, to depart from country guidance. Mr Jarvis relied on SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940, paragraph 47:
“It is for these reasons, as well as the desirability of consistency, that decision makers and 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.”
11. Mr Jarvis submitted that there was a ‘two-pronged’ test in relation to Article 15(c). The Tribunal should ask itself (a) whether the level of violence is so high that there is a general risk to all civilians and (b) whether, if there is not such a general risk, there is a specific risk based on the sliding scale notion: the more the applicant is able to show that he is specifically affected by reasons of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.
12. Mr Jarvis relied on AMM and Others (conflict; humanitarian crisis; returnees: FGM) Somalia CG [2011] UKUT 00445, in which the Tribunal found that there was no blanket Article 3 risk on return to Mogadishu. At that time, the Tribunal were not convinced that AMISOM had eliminated the risk from Al Shabaab. However, it had never been the Secretary of State’s case that there was no violence. There was a finding that violence had decreased since 2011. There was not a generalised risk of violence.
13. Mr Jarvis submitted that the Tribunal in MOJ recognised that the nature of the conflict had changed. The situation in Somalia used to be that Al Shabaab controlled most areas and there was only one part controlled by AMISOM. The situation in MOJ was that Al Shabaab did not control any specific areas in Somalia. The violence from Al Shabaab was not sufficiently high to show a generalised risk and that was the case today. Mr Jarvis relied on ICRC figures and trends observed by ACLED set out in his skeleton argument. He submitted that there was violence against civilians, but there had been no overall increase in violence since MOJ. There had been a relative increase in 2016 outside Mogadishu in the various operations that had been adopted to drive Al Shabaab out of major towns. However, the number of incidents were decreasing, although the number of fatalities did fluctuate widely. The data trends set out in the skeleton argument covered the period after MOJ and showed a decrease in incidents rather than an increase.
14. Mr Jarvis relied on a decision, dated 10th September 2015, of the European Court of Human Rights in RH v Sweden (4601/14) in which the court concluded that KAB v Sweden was still valid and there had not been a deterioration in security. The court found: “It is thus clear that the general security situation in Mogadishu remains serious and fragile. The available sources do not, however, indicate that the situation has deteriorated since September 2013.” The court relied on the conclusions drawn in MOJ and found that the present situation in Mogadishu had not changed in relation to an Article 3 risk.
15. There was also independent expert evidence given to the Human Rights Council on 15th December 2016 that the security situation continued to improve, even though Al Shabaab had continued to attack major security and civilian facilities, such as its attack against AMISOM military installations and the killing of AMISOM soldiers, the occasional loss of territory and the capture of weaponry.
16. There was the opinion of the Under Secretary General for Safety and Security, UN Security Council, dated 9th January 2017: “On 8th and 9th October the Under Secretary General for Safety and Security visited Somalia and met the President, the Minister for Internal Security and the Director General of the National Intelligence and Security Agency. He noted some improvement in the general security situation since his previous visit in August 2014. He reiterated the importance of the host government in providing security support to UN personnel, assets and operations given the attacks carried out against the United Nations.”
17. Mr Jarvis relied on the EASO Report of February 2016: “Overall the number of incidents in Mogadishu, especially bomb attacks, is decreasing but is still high. According to a security analyst expert interviewed by BFA Staatendokumentation (November 2015), Al Shabaab seems to avoid collateral damage in order to improve its own reputation. UNHCR in Somalia, interviewed by DIS (May 2015), explained that Al Shabaab wanted headlines and therefore carried out spectacular attacks against high profile targets. Al Shabaab frequently targets hotels as prominent places where officials meet, ….”
18. Mr Jarvis submitted that the test to be applied was whether the violence was at such a high level that there was a reasonable risk. There were two million people in Mogadishu and the evidence did not show that the majority of civilians were at risk. Al Shabaab were not systematically attacking civilians, although it was accepted that when they attack a high profile target there would be civilian casualties. However, the risk to civilians was not sufficient to satisfy Article 15(c). There had been a rise in violence during the elections where Al Shabaab had been attacking parliamentarians in an attempt to disrupt the elections. They had failed to do so and this was now at an end. There was nothing to show that Al Shabaab was attacking civilians, although there was a risk of being caught up in violence against officials and high profile figures. This was exactly what was identified in the country guidance of MOJ, which was the starting point.
19. Mr Jarvis submitted that I could only depart from MOJ if there was compelling evidence before me. The Appellant had failed to produce such evidence. The evidence to date reflected the same situation as that before the Tribunal in MOJ. The Appellant had not established that there had been such an increase in indiscriminate violence to meet the threshold in SG (Iraq). The targeted attacks continued and civilians were harmed, but the trend was down rather than up. The Appellant’s own characteristics did not put him at risk. He was returning to his clan and family. There was no evidence of clan targeting and the Benadiri were not treated as a minority.
20. Mr Jarvis submitted that the UN were not of the view that no one could return to Mogadishu. That was the position before the Tribunal in MOJ and it had not changed. The UNHCR had not updated their 2014 document dealing with Article 15(c) and, in fact, UN experts had commented on the security situation and said that there had been an improvement. Mr Jarvis accepted that Al Shabaab had gained more expertise in making explosives, but this was not a materially important factor since there was no increase in civilian casualties. Al Shabaab continued to attack hotels and the form of targeting was the same as that in MOJ.
21. Mr Jarvis referred me to page 119 of the Appellant’s bundle. There had been 313 fatalities in total in a year across the whole of Somalia, which meant that Al Shabaab killed on average 26 people per month. Even if all those people were civilians i.e. not police officers, officials or army personnel, then it was a tiny fraction of the population of the country of 12.5 million. Mr Jarvis accepted that the figures relied on dealt only with fatalities and not injuries, but the evidence was such that the situation had not deteriorated to such an extent that I should depart from MOJ. This evidence supported the Secretary of State’s case that the number of fatalities and injuries was not so high so as to affect civilians.
22. There was evidence before the Tribunal in MOJ of mortar attacks and the Appellant relied on mortar attacks in his skeleton argument. However, the situation now was no different to that in MOJ. The attacks were so sporadic that it did not amount to a risk of violence.
23. The Appellant relied on numerous attacks in 2015 and 2016 listed at paragraph 21 of his skeleton argument. All of the attacks were targeted at soldiers, politicians and police officers. None of these attacked showed a change in tactics and there was no evidence to show an increase in civilian casualties in any event. There was no increase in attacks on markets. The situation was the same as that before MOJ. There was nothing new which had resulted in an increase in deaths or harm to civilians. The Appellant would be returned to his family in Mogadishu. The evidence in relation to clan impartiality related to soldiers outside of Mogadishu.
24. Mr Jarvis submitted that the appeal should be dismissed. Violence was decreasing and there was no specific risk to the Appellant. He would not be returning to an IDP camp. There was nothing to prevent the Appellant from making enquiries to obtain employment.
Submissions by the Appellant
25. Mr Cheng submitted that the evidence before me showed that the Appellant would be at risk on return under Article 15(c). The starting point of MOJ was that there was no risk of indiscriminate violence, but there were still Article 3 issues in relation to IDP camps. Mr Cheng submitted that consideration of IDP settlements and employment were relevant. There was evidence before me that the Appellant may not be able to receive support from his family in order to avoid an IDP settlement.
26. In any event the evidence of trends was not helpful because, in MOJ, the Tribunal did not have a comprehensive data set. The open source ACLED data available in the Appellant’s bundle was not available in MOJ. Further, there were lots of targeted attacks in Mogadishu causing civilian casualties. The types of attacks taking place were against officials. MOJ suggested a range of targets.
27. Mr Cheng relied on paragraph 28 of his skeleton argument. There were instances of attacks being carried out in restaurants, tea shops and market places and the reports suggested that the methodology of the attack or the response by the authorities were indiscriminate. The Appellant was not in a situation where he could avoid these risks. No one could predict when the market would be attacked. There were different varieties of attacks and it would not be possible to say that the Appellant could avoid these places, which was part of the findings in MOJ. The attacks were happening on different targets and there were mobile targets. The data was incomplete and there was no tracking by AMISOM of civilian casualties. It was not possible in MOJ to know what was actually happening.
28. Mr Cheng submitted that the matters relied on by the Respondent in his skeleton argument and submissions did not show a decrease in trend. The attacks were the same in number, but civilian casualties were increasing because Al Shabaab were becoming better at bomb making. They were able to kill more people per incident. There were also killings because of extortion by the police and random instances of soldiers killing civilians for no reason.
29. Mr Cheng submitted that there was evidence which was not before the Tribunal in MOJ: descriptions of the types of attack taking place. There was also evidence that, since MOJ, Al Shabaab had infiltrated the security forces and, whilst there was no increase in the number of attacks, the attacks were bigger and there was general insecurity caused by decades of fighting. There had been enough of a change and there were additional details to consider in assessing whether the evidence provided showed, on the lower standard, that civilians were not safe in Mogadishu. The attacks were unpredictable and it did not matter if the Appellant had family who could assist him in avoiding certain areas because it was not possible to avoid areas Al Shabaab were likely to attack. It could not be done on the evidence. There was an increase in variety of attacks, and convoys and car bombs were mobile.
30. The ACLED data offered better insight into how civilians were caught up in the ongoing conflict. The attacks were indiscriminate and civilians did not know when or where they would happen. Mr Cheng submitted that I should not rely on figures or fatalities. There was a cogent body of evidence and compelling reasons to depart from MOJ. The trends put forward in MOJ were based on incomplete data. There was now evidence of what was actually happening: the variety of instances and the methodology. This evidence supported a complete departure from MOJ. Casualties were going up and the attacks were becoming more complex. The trends did show a worsening situation for civilians coupled with detailed descriptions, which were set out in the Appellant’s bundle. Whilst there was evidence of some improvement in the security situation, there was a trend of increasing violence prior to the election.
31. On the evidence as a whole, civilians were more likely to come to harm than on the evidence before the Tribunal in MOJ and on that basis the economic situation had deteriorated. The Appellant would not be able to find a job and would not be able to support himself. There were many instances of under employment and the Appellant faced such a widespread problem. There was evidence that families were overstretched. The Appellant would be unable to obtain support from his family and therefore he may end up in an IDP camp, notwithstanding the First-tier Tribunal Judge’s findings to the contrary. There was a general trend of unemployment and the Appellant was at risk of Article 3 harm. Mr Cheng submitted that I should allow the appeal on the basis that the evidence showed an increased level of risk of harm and it was not as simple as obtaining a job.
32. Mr Jarvis submitted that unemployment was 6% in Mogadishu and the Appellant had failed to show that he was not skilled. He would be in a better position than most on return because he was from the Benadiri clan.
Discussion and Conclusions
33. The first point to deal with in this appeal is whether I should consider issues other than the risk of indiscriminate violence under Article 15(c). Upper Tribunal Judge Gleeson found an error of law in respect of the failure to consider new country material and whether, in the light of that evidence, MOJ remained reliable country guidance on Article 15(c) in Mogadishu for civilians and the position of IDPs in Somalia and in Mogadishu in particular. The First-tier Tribunal found that the Appellant originated from Mogadishu, he had lied about having no family in Mogadishu, he would be accommodated by his family on return and he would be able to find employment. The Appellant would therefore not be forced to reside in an IDP settlement and would not be at risk on that basis.
34. The Appellant did not challenge the credibility findings of First-tier Tribunal Judge Chana and permission to appeal was not sought or granted on that basis. Accordingly, the relevant facts in this case are those found by the First-tier Tribunal. The Appellant is from Mogadishu, he can return and seek the help of his family and clan members to obtain accommodation and employment, he had been working in the construction industry in the UK and he has the necessary skills to secure a job. Accordingly, the Appellant would not be forced to live in an IDP camp on return to Mogadishu and the position of IDPs in Somalia and Mogadishu was not a relevant issue in this appeal.
35. In deciding whether the Appellant is at risk of indiscriminate violence under Article 15(c), the starting point is MOJ. The Tribunal found that:
(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 3 of the ECHR or Article 15(c) of the Qualification Directive. In particular, he will not be at 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 or as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country.
(b) There has been a durable change in the sense that the Al Shabaab withdrawal from Mogadishu was complete and there was no real prospect of a re-established presence within the city.
(c) The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered, as a whole, that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab’s resort to asymmetrical warfare on carefully selected targets. The present level of casualties does not amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk.
(d) It is open to an ordinary citizen of Mogadishu to reduce further still his personal exposure to the risk of “collateral damage” in being caught up in an Al Shabaab attack that was not targeted at him by avoiding areas and establishments that are clearly identifiable as likely Al Shabaab targets, and it is not unreasonable for him to do so.
(e) A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer.
(f) There are no clan militias in Mogadishu, no clan violence, and no clan-based discriminatory treatment, even for minority clan members.
(g) It will be for the person facing return to explain why he will not be able to access economic opportunities that have been produced by the economic boom, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who had never been away.
(h) It will therefore only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of security access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms. The evidence clearly indicates that it is not simply those who originate from Mogadishu that may now generally return to live in a city without being subjected to an Article 15(c) risk or facing a real risk of destitution.
36. I must assess whether, on the totality of the evidence before me, there are strong grounds, supported by cogent evidence, which justify departing from MOJ. The Appellant must show that the current situation is such that the level of violence is so high that there is a general risk to all civilians or, if there is not such a general risk, there is a specific risk to him on a sliding scale because of his particular circumstances. There are no circumstances particular to this Appellant which would bring him within the second prong of the test because he can return and be supported by family and clan members. Mr Cheng did not advance his argument on the basis that there were any other circumstances particular to this Appellant. Therefore, I shall consider whether the evidence in its totality is such that the level of violence is so high that there is a general risk to all civilians.
37. The evidence indicates that Al Shabaab targets officials, politicians and NGOs although in targeting those persons there will no doubt be civilian casualties. Al Shabaab has not changed its tactics since the hearing in MOJ and the overall percentage of those injured has significantly decreased since 2011 and remains largely unchanged since the hearing of MOJ, notwithstanding evidence that Al Shabaab have infiltrated the security services.
38. The burden is on the Appellant to show that the security situation has worsened to such an extent that it is no longer safe to follow MOJ. Mr Cheng relies on numerous incidents of violence, set out in his skeleton argument and the schedule submitted on 7th March 2017. There were 44 incidents in 2015 and 50 incidents in 2016. On average, less than one incident a week. However, Mr Cheng accepts that the number of attacks have not increased since MOJ.
39. I find that there are frequent attacks in Mogadishu and the situation remains volatile, but there is evidence that the number of incidents and attacks have not increased. However, because Al Shabaab are gaining greater experience and developing more powerful explosives, the collateral damage to civilians caused in these attacks is increasing.
40. Mr Cheng submitted that Al Shabaab are not merely targeting hotels or sites known to house potential targets (such as government officials, police or members of NGOs), but are targeting restaurants, teashops and markets. Therefore, the increase in civilian casualties caused by more powerful explosives and the fact that the attacks have become more widespread and greater in variety is such that a civilian could not be said to be able to avoid such a risk because they are unable to predict the timing and nature of any attack. There was also an increase in mortar attacks in areas of Mogadishu and civilians are as much at risk from random attacks of the authorities as they are from insurgent action.
41. I find that the incidents referred to and relied on by Mr Cheng do not show that civilians are at increased risk. Whilst the evidence indicates that civilians are as much at risk from random attacks of the authorities as they are from insurgent acts in Mogadishu, there has been no significant increase in incidents and there is evidence that injuries from such incidents have not significantly increased since MOJ. The increase in fatalities caused by the use of more powerful explosives is not such that it amounts to cogent evidence that I should depart from MOJ.
42. I find that Al Shabaab are still targeting officials and not civilians. There is violence and has been violence in Mogadishu, but the evidence produced does not show that there is such a high level of violence that there is a general risk to all civilians. The situation may be slightly worse than MOJ because of the increased power of explosives, but it cannot be said, on the evidence as a whole, that the Article 15 (c) threshold has been met. I find that the level of violence is not so high that there is a general risk to all civilians. Accordingly, I dismiss the Appellant’s appeal.

Notice of Decision

The appeal is dismissed.

No anonymity direction is made.

J Frances
Signed Date: 29th March 2017

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

J Frances
Signed Date: 29th March 2017

Upper Tribunal Judge Frances