Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02860/2015

THE IMMIGRATION ACTS

Heard at North Shields
Determination Promulgated
On 21 November 2016
On 19 December 2016
Prepared on 12 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

A. A.
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Cleghorn. Counsel instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom illegally and claimed asylum on 23 July 2015. That application was refused on 6 November 2015, and a decision to remove him was made in consequence.
2. The Appellant's appeal to the Tribunal against the refusal of his claim to protection was heard and dismissed by decision of First Tier Tribunal Judge Duff promulgated on 12 September 2016.
3. The Appellant's application to the First Tier Tribunal for permission to appeal was granted on 20 October 2016 by Judge Page on the basis that it was arguable that "notwithstanding the changes that had occurred in Somalia the objective evidence was such that the Judge had misdirected himself and failed to consider the evidence in the round".
4. Thus the matter comes before me.

Error of Law?
5. The grounds, as drafted by Ms Cleghorn, offer three complaints about the approach taken by the Judge to the evidence. First it is argued that it was unsafe for the Judge to rely upon the conclusions in MOJ & Others (return to Mogadishu) Somalia CG [2014] UKUT 442. Second it is argued that the Judge was wrong to fail to take as his starting point the fact that one of the Appellant's brothers had been recognised as a refugee following his 2010 appeal to the Tribunal. Third it is argued that the Judge wrongly imposed upon the Appellant a requirement to provide corroboration of his account, in wrongly adopting an argument advanced by the Respondent at the hearing, that the Appellant ought to be able to provide documentary evidence of a death that was said to have occurred in Mogadishu hospital, but which he knew to be disputed.
6. The Appellant's case was that he had used a genuine Somali passport to leave Mogadishu, and to travel to Qatar by air. He claimed that he had then destroyed that passport and used a false Dutch passport to enter Italy by air, and then to travel to the Netherlands. He asserted that his family had been targeted by AlShabab when living in Somalia, in both Mogadishu and Medina, with the result that his father and two of his brothers had been murdered. As a result his case was that it was not safe for him to return to live anywhere in that country.
7. Before me, Ms Cleghorn initially sought to argue that the Appellant was not an "ordinary citizen" within the meaning given to that term in MOJ. Upon reflection she accepted that she could not sensibly advance that proposition; the Appellant had never claimed to have been associated with the security forces, or, any aspect of the administration of Somalia, or, any NGO.
8. Ms Cleghorn therefore fell back upon the argument that since the Appellant's father had been murdered by AlShabab, it followed that the Appellant was necessarily in a special category of persons who were of interest to that group, and at harm from that group. There is however no proper evidential basis for such a bald proposition, and as advanced it is simply inconsistent with the guidance to be found in MOJ as to the situation in Mogadishu as it was assessed by the Upper Tribunal to be on the evidence placed before it in early 2014. Ms Cleghorn accepted that she was unable to advance before Judge Duff the proposition that there was reliable evidence to show that there had been a significant adverse change in the situation since early 2014. The Judge was obliged in those circumstances to consider the Appellant's account in the context of that country guidance.
9. The Judge noted that the Appellant's account of AlShabab's activity in Mogadishu and ability to target and murder family members was inconsistent with the findings made in MOJ concerning the expulsion of that group from Mogadishu, and the lack of any real prospect of their re-establishment of a presence in that city. He was right to do so.
10. In my judgement the approach taken by the Judge was in accordance with the authority of Devaseelan [2002] UKIAT 702. The fact that the Appellant's elder brother was able to succeed in his asylum appeal before the Tribunal in February 2010 was never a trump card in 2016. That appeal turned upon the concessions that were made by the Respondent in that case, which were not made in this appeal. The situation in Mogadishu in 2009 was consistent with the description offered by the Appellant's brother at his hearing in 2010. It was entirely different to that which existed in September 2016, and to that which had existed for some little time prior to February 2014. As the Judge identified, it was the inconsistency between the Appellant's account and the assessment of the evidence undertaken by the Upper Tribunal in MOJ that indicated strongly that he was not telling the truth about his own experiences and those of his family, since 2009.
11. Finally, I note that the Appellant has never offered any evidence to substantiate, or to found, Ms Cleghorn's assertion that there is no system for recording deaths in Mogadishu generally, or specifically, those occurring in Mogadishu hospital. It is now accepted before me that this was an argument advanced on behalf of the Respondent at the hearing below. Thus it was argued on behalf of the Respondent that the Appellant had failed to offer any evidence to corroborate his claim that his younger brother had died, or his claims as to the circumstances in which he had died. Both arguments were properly open to the Respondent, and Ms Cleghorn accepts that she did not respond to them at the hearing. In my judgement it is wholly inappropriate in such circumstances to advance the assertion that the Judge made any material error of law when he commented that the lack of any such corroborative evidence was in accord with the lack of credibility inherent in the Appellant's account.
12. In the circumstances the Judge did not make any material error of law in his decision to dismiss the appeal on all grounds, and I confirm his decision.

DECISION
The Decision of the First Tier Tribunal which was promulgated on 12 September 2016 did not involve the making of an error of law in the decision to decision to dismiss the appeal that requires that decision to be set aside and remade. That decision is accordingly confirmed.

Deputy Upper Tribunal Judge JM Holmes
Dated 12 December 2016

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until the Tribunal directs otherwise the Appellant 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.

Signed
Deputy Upper Tribunal Judge JM Holmes
Dated 12 December 2016