Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02798/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision Promulgated
On 21st November 2016
On 1st December 2016

Before

deputy upper tribunal JUDGE KELLY

Between

Najma [A]
(no ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss S Khan, Counsel instructed by Broudie, Jackson Canter
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by Miss Najma [A] against the decision of First-tier Tribunal Judge Farrelly, promulgated on the 17 August 2016, to dismiss her appeal against the refusal of her Protection Claim. The basis of the appeal is that the judge erred in law by making contradictory findings of fact.
2. The essence of the appellant's claim was (and is) as follows. She is a Somali national who was born in Mogadishu and is a member of the majority Darood/Ogaden clan. She was brought up from the age of two years, together with her elder brother and her parents, in a refugee camp in Kenya. The family remained in Kenya following the closure of the camp in 1997. Her sister was born in Kenya in 2000. The family returned to Somalia in 2007 because her father had been working as a driver but was unable to obtain a driving licence. The family lived on Chula Island, where her father worked as a boat maker. From January 2015 onwards, her father received several visits from a group of men who spoke to him in private. The appellant later learnt that they were seeking to recruit her father to Al Shabaab. As a result of these visits, the family planned to leave Somalia in April 2015. However, in March 2015, a group of over 10 men arrived at night and killed the appellant's father, beat her husband and brother, and raped her and her mother. As a result of the attack upon her, the appellant lost consciousness. She awoke in a hospital in Mombasa, Kenya. Coincidentally, a friend of her mother from Kenya was visiting the hospital at the time, and she put her in touch with a people smuggler. The appellant and the people smuggler travelled together by plane to a third country, where he gave her a false passport and a plane ticket for Manchester. She has had no contact with her family since her arrival in the UK and she does not therefore know what became of them. She believes that the men responsible for her father's murder were members of Al Shabaab. She fears that if she returns to Mogadishu she will either be targeted by Al Shabaab or become destitute.
3. The Respondent accepts that the appellant is a Somali national and also accepts her account of the family fleeing the violence in Mogadishu in 2002. The issue before Judge Farrelly thus revolved around the credibility of the appellant's account of (a) her return to Somalia in 2007, and (b) events leading up to her eventual departure for the United Kingdom in 2015. Judge Farrelly's reasons for finding that that account was not credible may be summarised as follows.
4. Given that the appellant is from a Somali majority clan and from Mogadishu, it is not apparent why her father would have decided to relocate to one of the islands which are typically occupied by Bajuni minority clan members (paragraph 14). The appellant was unable to offer any explanation as to how she came to be in a hospital in Kenya, some 800 km away, when there were nearer hospitals in Somalia (paragraph 16). It was "incredibly fortuitous" that a friend of her mother should happen to meet her in a Kenyan hospital, especially given that the appellant claimed not to have resided in Kenya for some 8 years at that time. It was "even more incredulous" that the friend happened to have a brother who was wealthy and a people trafficker, let alone that he would be willing to travel with her to the United Kingdom without recompense (paragraph 17). It was "surprising" that the appellant had not made any effort to trace her family through the Somali community in the UK.
5. Judge Farrelly's conclusions are set out in paragraphs 19 and 20. It was these paragraphs upon which Miss Khan focused the majority of her criticism of the judge's findings. I therefore set them out in full.
"19. It is my conclusion that the appellant's claim about events in March 2015 has been fabricated. I accept that the appellant was living Kenya. I do not accept that she returned to Somalia. I do not find it credible that the family would have relocated to an island where they have no stated connection. While things were difficult in Kenya there was no risk to life. One explanation for the appellant stating the family moved to an island would be awareness that the situation in Mogadishu is now stable. I believe that she has fabricated a claim around Al Shabaab in an area where they still have a presence. I believe this explains why she originally mentioned being Bajuni. It is also not credible that her father would have no difficulties in 2007 until January 2015 and then be approached three times.
20. It is my conclusion that the appellant could be returned to Mogadishu. I appreciate a single female is in a vulnerable position. However she is a majority clan member and could expect some support from her clan. If her claim were believable her benefactress in Kenya could also provide support. The family originally are from Mogadishu. It may be she can be reunited with members of her family. Because I do not believe her account about Al Shabaab it would mean her parents brother and husband are still in the country."
6. The above analysis discloses two inconsistencies of approach. The most glaring of these is the judge's finding that the appellant's benefactress in Kenya would be able to provide support to the appellant upon her return to Somalia, having earlier found that this aspect of her claim was wholly incredible. Whilst I appreciate that the later finding purports to be conditional upon the appellant's account being "believable", it is an error of law to reject a factual claim as incredible only later to rely upon it as providing support for a finding that the claimant will not be at risk on return to her country of origin. Such an approach involves having the proverbial cake and eating it.
7. In the second and third sentences of paragraph 19, the judge stated in terms that he did not accept that the appellant had returned from Kenya to Somalia. Given that it was the appellant's case that she had returned to Somalia with her parents and siblings, that is a finding which it is impossible to reconcile with the later finding (in the final sentence of paragraph 20) that "her parents, brother, and husband are still in [Somalia]".
8. Given that the supposed availability of support from a benefactress and close family members was an integral part of the judge's conclusion that the appellant could safely return to Mogadishu, I am satisfied that the judge's inconsistent reasoning is such as to infect the entirety of the decision. The decision must therefore be set aside and none of its factual findings are to be preserved.
9. Having announced the above decision at the end of the hearing, both representatives agreed that the appropriate course was to remit this appeal to the first-tier Tribunal for a complete rehearing. I also acceded to Miss Khan's request for the matter to be reheard at the Bradford hearing centre given that this is the most convenient location to the appellant's current address.

Notice of Decision
10. The appeal is allowed, the decision of the first-tier Tribunal is set aside, and the appeal is remitted for rehearing at the Bradford hearing centre.

Signed Date 1st December 2016

Deputy Judge of the Upper Tribunal