Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02953/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9th November 2016
On 5 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mohammed [B]
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Jarvis, Home Office Presenting Officer
For the Respondent: Mr Aslam, Fadiga & Co Solicitors, Stratford

DECISION AND REASONS
1. The Appellant in these proceedings is the Secretary of State. However for convenience I shall now refer to the parties as they were before the First-tier Tribunal.
2. The Appellant is a citizen of Somalia born on 1st September 1980. He appealed against the decision of the Respondent dated 9th March 2016 refusing his application for asylum, humanitarian protection and on human rights grounds. His appeal was heard by Judge of the First-tier Tribunal Metzer on 23rd August 2016. He allowed the Appellant's appeal under Article 3 ECHR in a decision promulgated on 14th September 2016.
3. An application for permission to appeal was made and permission was granted by First-tier Tribunal Judge Ransley on 10th October 2016. The permission states that it is arguable that the judge's finding, that returning the Appellant to Mogadishu would breach Article 3 of ECHR, involves an error of law due to the judge's failure to follow the country guidance in MOJ and Others (CG) [2014] UKUT 442 (IAC). The permission states that headnotes (ix), (x) and (xi) of this case are relevant. With reference to headnote (x) it is arguable that given the Appellant is a healthy adult without dependants the judge failed to give reasons for finding that the Appellant would have no real prospect of securing access to a livelihood on return to Mogadishu.
4. No Rule 24 response was lodged.
The Hearing
5. The Presenting Officer asked to expand the grounds to take into account the question of risk in an IDP camp in Somalia with reference to the case of Abdul Kadir Ahmed Said [2016] EWCA Civ 442. He also made reference to the case of AAW Somalia [2015] UKUT 00673 (IAC).
6. The Appellant's representative submitted that this is a major change not a slight disagreement and should not be added to the reasons in the grant of permission. I reserved my position.
7. The Presenting Officer made his submissions submitting that the Appellant's brother has status in the United Kingdom based on his membership of the Benadiri clan. He submitted that there was evidence from him before the judge although he was not at the hearing in person.
8. The Presenting Officer submitted that at paragraph 10 of the decision the judge states that the only issue of credibility is whether the Appellant lost contact with his family in Somalia after he went to Yemen. I was referred to paragraph 13 of the decision in which the judge states that the Appellant has no political presence and would be returned to Mogadishu. The judge notes that the Appellant has never lived there. He has not lived in Somalia since 1987/88. The judge finds that the Appellant has no family in Mogadishu and there is nothing to suggest that his clan (Ashraf) would be of any help to him and there would be limited assistance from his brother in the United Kingdom. The judge finds it is likely that on return the Appellant will require to live in an IDP camp where there is a real possibility of having to live in conditions falling below acceptable humanitarian standards. The Presenting Officer submitted that in spite of this, at paragraph 15 of the decision, the judge refers to there being a substantial number of Benadiri tribe people living in Mogadishu but he goes on to find that the Appellant does not have strong clan ties to the Benadiri tribe, mainly because of the length of time he has lived outside Somalia.
9. The Presenting Officer submitted that paragraph 14 of the decision is unlawful. I was referred to the case of MOJ and Others Somalia [2014] UKUT 00442 (IAC). This states that Somalian citizens can go to Mogadishu even if they are not from there and they will not be at real risk of persecution or at real risk of harm. He submitted that the Appellant will not be at risk simply on account of having lived in a European location for a period of time. Paragraph 407 of MOJ states that Al Shabaab have now withdrawn from Mogadishu and the Appellant has not shown that he will be unable to work there as at present there is an economic boom in Mogadishu and there is work available. At paragraph 408 it is stated that it will only be those with no clan or family support, those who will not be in receipt of remittances from abroad and those who will have no real prospect of securing 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. He submitted that the Appellant has not shown that he will be unable to get work in Mogadishu in the present situation and the judge in his decision does not say why he believes the Appellant will be unable to find work.
10. I was then referred the said case of AAW and the Presenting Officer submitted that this is a Benadiri case and reiterates what is stated in the said case of MOJ. I was referred to paragraph 47 which refers to the prospects of an Appellant securing a livelihood. Paragraph 54 refers to the Appellant in that case having no family in Mogadishu, being a member of a minority clan and not being able to resort to a well-established and predominant Mogadishu community who have in general rebuilt their businesses in the aftermath of the initial period of the civil war. At paragraph 55 of AAW it is stated that even though some minority clans have little to offer to those of its members looking for assistance, the Benadiri are not in such a position and there are employment opportunities. The Presenting Officer submitted that the case of AAW was not before the First-tier Tribunal but its analysis has to be taken into account and it supports the said case of MOJ.
11. The Presenting Officer submitted that the Appellant has not shown why he will be unable to find work if he returns to Mogadishu. The Benadiri will help him and there is therefore a material error of law in the judge's decision.
12. I was then referred to the said case of Said which the Presenting Officer submitted is binding on the Tribunal and should have been applied by the judge. He submitted that based on this case the conditions in the IDP camps do not reach the threshold required by Article 3. I was referred to the case of N v Secretary of State for the Home Department [2005] 2 AC 296 and he submitted that the conditions in the IDP camps do not meet the threshold required by N. What would be required would be the risk of direct violence against the Appellant on return to an IDP camp in Somalia and this has not been shown. He submitted that there is no evidence from the Appellant to show that he would suffer mistreatment from, for example, militias on return to an IDP camp. He submitted that paragraph 14 of the decision is inconsistent with the said case of N.
13. I was asked to find that there is a material error of law in the judge's decision.
14. The Appellant's representative submitted that based on the grounds pleaded which rely on the country guidance case of MOJ, not only headnote (x) has to be considered but also headnotes (ix) and (xi). He submitted that the Respondent refers to economic opportunities in Mogadishu but he submitted this has to be read with headnote (vii) to (xii) in MOJ. He submitted that (x) cannot be read in isolation.
15. The representative submitted that there may be employment available if the Appellant has assistance in obtaining a livelihood but he submitted that this Appellant has no assistance. He submitted that the judge deals with this at paragraph 12 onwards of his decision. This is an Appellant who left Somalia when he was aged 11 and lived in Yemen until he came to the United Kingdom. He submitted that he has no-one in Somalia and no assistance there. The judge refers to this at paragraph 13 and the judge at this paragraph refers to the appellant's brother having his own family in the United Kingdom and being unable to give the Appellant financial assistance.
16. At paragraph 14 of the decision the judge refers to paragraph (xi) of MOJ. He states that the Appellant would be returning as someone with no clan or family support who would not be in receipt of remittances from abroad. The judge finds that because of this he would have no real prospect of securing access to a livelihood on return. He submitted that the Appellant would need an element of support if he was removed to Somalia now. He submitted that at paragraph 14 the judge builds up to the real possibility of the Appellant having to live in conditions falling below acceptable humanitarian standards in an IDP camp. He sets out other reasons for the Appellant being unable to get a livelihood on return and all these reasons are in line with the case of MOJ. I was referred to paragraph 31 of the case of Said. This states that there is a distinction between humanitarian protection and Article 3 and the individual circumstances of the person concerned must be considered. Reference is made in this paragraph to paragraph 43 of MOJ.
"The fact that we have rejected the view that there is a real risk of persecution or serious harm or ill-treatment to civilians or returnees in Mogadishu does not mean that no Somali national can succeed in a refugee or humanitarian protection or Article 3 claim. Each case will fall to be decided on its own facts. There will need to be a careful assessment of all the circumstances of a particular individual."
The representative submitted that when all the facts in this case are considered this Appellant's claim should succeed under Article 3. He submitted that the judge's decision is in line with the said case of MOJ and the particular circumstances of the case are described in the judge's decision at paragraphs 7 to 12. He submitted that there is no material error of law in the judge's decision.
17. I asked about the Appellant being able to get help from the Benadiri clansmen in Mogadishu. The representative referred to paragraph 15 of the decision in which the judge states he does not find that the Appellant has strong clan ties to the Benadiri tribe given where he previously lived and his length of time outside Somalia and the absence of any family connections and the fact that he left Mogadishu when he was a child. He submitted that the judge's decision was open to him on the specific facts of this case.
18. The Presenting Officer submitted that the Appellant's circumstances do not show that the Appellant is someone who cannot get family clan assistance. He submitted that there is no reason for this Appellant having to go to live in an IDP camp. It is only those who cannot work who have to live there.
19. I was again referred to the said case of MOJ at paragraphs 407 and 408 which state that the Appellant has to show why he cannot get work even if he has no support and he submitted that this Appellant has not done so. I was referred to paragraph 407(g) of MOJ which states:
"The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assistance with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members."
He submitted that work is available for everyone unless there is a reason an individual cannot work and there is nothing to indicate that in this case the Appellant is unable to work. He submitted that there is no material difference between the case of MOJ and this case. He submitted that people in the Appellant's position are in a better situation than those who have remained in Somalia. He submitted that there has to be a connection between work and clan and I was referred to paragraph 28 of the said case of Said which refers to paragraph 408 of MOJ and states that there would be no breach of Article 3 on return.
20. He submitted that if the Appellant is removed from the United Kingdom he can apply for funds to assist him, so on arrival in Somalia he will be able to support himself until he gets work. He submitted that the judge has used the wrong starting point in this claim. This Appellant on return will be able to get work and he has not discharged the burden of proof showing that he will be unable to do this.
21. The Appellant's representative submitted that the Presenting Officer is expanding on what the case of MOJ states. He submitted that paragraph 407(h) of MOJ states:
"It will be for the person facing return to Mogadishu to explain why he would not be able to access the 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 have never been away."
He submitted that this cannot be read in isolation. He submitted that the rest of paragraph 407 makes it clear that everything hinges on assistance and support. Someone returning to Mogadishu requires assistance so that they can re-establish themselves and this Appellant has no-one there and he submitted that there is no material error of law in the judge's decision based on the case law and the evidence before him.
Decision and Reasons
22. The Presenting Officer's claim is based on headnote (x) in the said case of MOJ and Others (x):
"It will be for the person facing return to explain why he would not be able to access the 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 have never been away."
The Respondent however has not taken this in context. This has to be considered along with the other headnotes in the said case of MOJ and Others. Headnote (vii) states that help for people returning to Mogadishu from their clan members who are not close relatives, is only likely to be forthcoming for majority clan members, as minority clans may have little to offer. The case goes on to state that there are no clan militias in Mogadishu and no clan violence and no discriminatory treatment for minority clan members but if a returnee has no nuclear family or close relatives to assist him in re-establishing himself on return all these circumstances have to be taken into account.
23. This is an Appellant who left Somalia when he was 11 years old. He lived in Yemen before he came to the United Kingdom. He has never lived in Mogadishu. He has no family there although it is clear that there are Benadiri clan members living in Mogadishu. He has no access to financial resources and because of these circumstances the prospects of him securing a livelihood would seem to be almost impossible. There are no remittances from abroad available to him and although headnote (x) states that the Appellant has to explain why he would not be able to access the economic opportunities in Mogadishu when the circumstances of this case are considered it is unlikely that he would be able to access these economic opportunities. It seems that this Appellant is likely to be one of the people described in (xi) of MOJ and Others. He would have no real prospect of securing access to a livelihood on return and will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms. (xii) states that people who have never been to Mogadishu can return to live there and are not subjected to an Article 15(c) risk but it goes on to state that it is not realistic for someone of a minority clan with no former links to the city having any other alternative but to live in makeshift accommodation in an IDP camp.
24. The case of Said should have been taken into account by the First-tier Judge and this case makes reference to IDP camps. At paragraph 31 it states that if the returning Somali national can show that he is likely to end up having to establish himself in an IDP camp that would be sufficient to engage the protection of Article 3. It goes on to state that the individual circumstances of the person concerned have to be considered and makes reference to the test in the said case of N. I have considered the objective evidence on IDP camps which was before the judge. I find this particular Appellant is likely to be unable to establish himself in Mogadishu for the same reasons as the judge has found this.
25. The burden is on the Appellant to show that he will have no prospects of securing a livelihood whether that be employment or self-employment and when this Appellant's circumstances are considered he has shown this and for him to be removed to Mogadishu would engage Article 3 of ECHR based on his circumstances. He may well end up as a person who has no option but to live in an IDP camp. The case of MOJ and Others makes findings on these camps which have to be considered and the objective evidence refers to thousands of people living in circumstances of destitution. Each case falls to be decided on its own facts and I find that there is no material error of law in Judge Metzer's decision promulgated on 14th September 2016.
26. His decision must stand and the Appellant's appeal on Article 3 human rights grounds is allowed.
27. Anonymity has not been directed.

Signed Date

Deputy Upper Tribunal Judge I A M Murray 5 December 2016