Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal no: PA/03622/2015

THE IMMIGRATION ACTS

At
Decision signed: 23.02.2017
on 22.02.2017
sent out: on 24.02.2017

Before:
Upper Tribunal Judge
John FREEMAN

Between:
Adan Ali HERSI
appellant
and

respondent

Representation:
For the appellant: Mr A Masood, solicitor, Aden & Co
For the respondent: Mr Chris Avery

DECISION AND REASONS
This is an appeal, by the , against the decision of the First-tier Tribunal (Judge Roxane Eban), sitting at Hatton Cross on 23 May 2016, to on humanitarian protection and article 3 human rights grounds an appeal by a citizen of Somalia, born 15 October 1965. There was a previous hearing on 1 September before deputy Upper Tribunal Judge Richard Chalkley, who set aside the first-tier decision and re-made it, and an application for permission to appeal to the Court of Appeal. This was dealt with by Upper Tribunal Judge Melissa Canavan on 18 October, provisionally upholding the decision to set aside, but setting aside the fresh decision, and inviting any further representations within 5 days of the order being sent out, which it was on 25 October.
2. That invitation was taken up, if a little late, by the appellant's solicitors on 10 November: they submitted that the decision to set aside, as well as the fresh decision, should be set aside, and the appeal to the Upper Tribunal start afresh. This was considered by Upper Tribunal Judge Mark O'Connor; but on 21 December he confirmed that the set-aside was to stand, but the fresh decision to be set aside.
3. Mr Masood wished to re-open the 10 November application before me; but, as I explained to him, his proper course would have been to make an application to Judge O'Connor to reconsider his decision, and leaving it till a full hearing before another judge was, regardless of any merits the application might have, embarrassing to the point of being an abuse of the process of the Tribunal. It follows that I need to make a fresh decision on the appeal, taking due account of any findings of fact by Judge Eban that survived Judge Chalkley's set-aside decision.
4. History For present purposes, I am content to take the facts accepted by Judge Eban, as set out by Mr Masood at p 5 of his skeleton argument, which appear in the history I am about to give: Mr Avery did not take the opportunity I gave to argue against this course of action. This appellant comes from the Reer Hamar minority clan, and left Mogadishu for Puntland in about 1992, going on to Hargeisa in Somaliland in 1995, and arriving in this country on a visit visa in 2008. In 2009 he was issued with an EEA residence card as the husband of a Swedish lady of Somali origin; in 2010 they parted company, but he remained here, working as a baker and living with friends, till 14 October 2014, when he applied for a permanent residence card. On 14 January this was refused, and on 20 April he claimed asylum. On 21 August he was refused asylum or any other Convention protection, which was the decision under appeal. He has no close relations in Mogadishu, and his friends here are not likely to send him money there. He is less likely to find work there than a younger man might be.
5. Issues There is only one question on this appeal, which is whether the appellant has shown a reasonable likelihood of suffering 'inhuman or degrading treatment' on return to Somalia which would entitle him to protection under article 3 of the Human Rights Convention, or article 15 (c) of the Qualifications Directive. That has to be decided in the light of MOJ & others (Return to Mogadishu) (CG) [2014] UKUT 442 (IAC): since there is now no suggestion in this case that he would be at any Convention risk, other than the prospect of destitution, the relevant parts of the country guidance are those which now follow.
6. Country guidance in MOJ
(vii) 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.
(viii) The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assist 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.
(ix) 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 in re-establishing himself on return, there will need to be a careful assessment of all of the assessment of all of the circumstances. These considerations will include, but are not limited to:

circumstances in Mogadishu before departure;
length of absence from Mogadishu;
family or clan associations to call upon in Mogadishu;
access to financial resources;
prospects of securing a livelihood, whether that be employment or self employment;
availability of remittances from abroad;
means of support during the time spent in the United Kingdom;
why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.
(x) Put another way, 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.
(xi) 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 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.
(xii) The evidence indicates clearly that it is not simply those who originate from Mogadishu that may now generally return to live in the city without being subjected to an Article 15(c) risk or facing a real risk of destitution. On the other hand, relocation in Mogadishu for a person of a minority clan with no former links to the city, no access to funds and no other form of clan, family or social support is unlikely to be realistic as, in the absence of means to establish a home and some form of ongoing financial support there will be a real risk of having no alternative but to live in makeshift accommodation within an IDP camp where there is a real possibility of having to live in conditions that will fall below acceptable humanitarian standards.
7. Facts This appellant has no nuclear family in Mogadishu, and is from a minority clan, from which he cannot expect much in the way of help, even if he will not face discrimination on that basis. He has no access to funds there, and is not likely to get remittances from abroad: I accept that traditional hospitality, such as he has received from friends in this country, will not necessarily be replaced by cash payments. He did once live in the city, but 25 years ago, and at a time when conditions were very much more difficult than they are now. It is not clear how he managed to fund his travel here on a visit visa; but it is likely that he would, as he claims, have been sponsored by his Swedish wife. So, on the basis of MOJ & others, he is likely to have to go into an IDP camp, facing conditions contrary to article 3, unless he can get some kind of employment.
8. The appellant, according to what he told Judge Eban (see her paragraph 9) had previously worked as "a handyman carrying things" in Somalia, and as a baker in this country. While the economic boom in Mogadishu has created opportunities, for which those with overseas experience may be preferred (see MOJ & others (x)), he says his age and minority clan membership are likely to put him at a corresponding disadvantage.
9. 'Country expert' report Judges Canavan and O'Connor gave the appellant extensions of time till 13 February to file this evidence. Realistically, Mr Avery raised no objection to my granting the further four days required till this was done on 17 February. The report is by Professor Mario Aguilar, of the University of St Andrews: he gives details of his qualifications, experience and publications, and is entitled to be treated as an expert witness. The value or otherwise of his evidence of course depends on intrinsic considerations.
10. Professor Aguilar deals with the appellant's employment prospects, somewhat repetitively, but in response to questions asked him by the solicitors, under conclusions 2, 3 and 4, at paragraphs 42 - 50 of his report. He begins by noting that there is (of course) no official social welfare system in Somalia, and goes on to say at 44, based on an on-line report of 28 September 2016, that "Mogadishu is the most fragile city in the world with 66% unemployment". While this does not sound very like the boomtown featured in MOJ & others, it is not necessarily inconsistent with the country guidance to be found there.
11. Professor Aguilar's next point, at paragraph 45, however, shows an elementary ignorance of statistics and the demography of developing countries, in particular Somalia. While the expectation of life at birth for a man in this country (82 years, according to a report in today's Times) is very close to the commonest date of death (87), that is far from the case with the corresponding figure in Somalia (53.5, according to a World Health Organization report, referred to by Professor Aguilar). The reason is that, as is common knowledge amongst those with an informed interest in the subject, the perinatal and infant mortality figures are very much higher in a country such as Somalia than in one such as this.
12. It is certainly surprising that Professor Aguilar should have been unaware of that, and, in line with the principles set out in AAW (expert evidence - weight) Somalia [2015] UKUT (IAC) 673 it must cast some doubt over his conclusion (at paragraph 45) that
Therefore the appellant is not at the top of the working age as in Europe but he is at the end of life for Somali standards. Thus, culturally the appellant will be treated as an elder, a retired older person who culturally cannot look for employment but has to sit and bless his family, children and grandchildren.
While no doubt there are significant difficulties between Somali and British culture, this is no more than a repeated reference to what is 'culturally' expected, not supported by anything more than a statistic which does not make the case for the proposition relied on.
13. Professor Aguilar's next point, at paragraph 46, refers to the employment discrimination he says is suffered by members of minority clans. He cites, without giving date or context, a Minority Rights Group [MRG]report 'No redress: Somalia's forgotten minorities'; though he gives a web-site link for the text, it is not accessible through that, but it can be found on a search of the MRG site. When found, the report turns out not only to date back to 2010, but not to be about Mogadishu, the subject of MOJ & others and of this case, at all. The area dealt with is shown on the front page as follows:
The report examines the current situation in three regions of Somalia - Somaliland, Puntland and south-central Somalia - where differing political climates have left minorities in a state of desperation.
14. I decline to consider this material further, though the report is also cited at paragraph 48 of Professor Aguilar's, as evidence for it being hard for minority clan members to get a job in Mogadishu. Once again, this does not inspire me with any confidence in his modus operandi. At paragraph 49 he opines that in Mogadishu
Most of the jobs after the civil war are available within the small business private sector and a single man of 50 from a minority clan and without a family would be distrusted ? before the civil war married men were preferred, after the civil war young people with new skills and new ideas are preferred ?
15. Professor Aguilar goes on to give more details of his view, but without citing any evidence for it. He does not suggest that it is based on any personal investigation by him, and his paragraph 2 'Expertise' does not mention any visits to the area since he did fieldwork on the Somalia/Kenya border in 1992. What he says may or may not be correct; but, in view of my reservations about his methodology, I am not prepared to accept it as reliable.
16. Background evidence Some of this appears in a supplementary bundle [SB], which I allowed Mr Masood to put in for the first time before me, on the understanding that it did no more than update the one used at the first-tier hearing [AB]. At [SB 5], there is an extract from a Voice of America [VoA] report; but that turns out not to relate to Mogadishu: it replicates the one which appears at [AB 55], listed in the skeleton argument. The others relied on by Mr Masood can be seen at pp 14 - 15 of his skeleton argument. At [AB 145] there is an extract from the State Department report for 2014 on Somalia, which may post-date MOJ & others (heard in February that year). However, the highlighted passage relied on reads [my emphasis]:
In most areas the predominant clan excluded members of other groups from effective participation in governing institutions and subjected them to discrimination in employment.
I am not prepared to accept this as going against what is specifically said in MOJ & others at (ix), as to there being "no clan based discriminatory treatment [in Mogadishu], even for minority clan members.
17. At [AB 147], there is another extract from the State Department report for 2014, which relates how the Somali Congress of Trade Unions had received several complaints from job seekers of gender and job-based discrimination at the largest companies in the country. This is something to be taken into account, though interestingly it goes rather against what Professor Aguilar had said (see 14) about the predominance of the small private sector in Mogadishu. It also suggests that formal means of redress are available, though it is not clear how effective they might be.
18. At [AB 188] there is an extract from the Canadian IRB report for 2015; but the gloomy picture of employment opportunities given turns out to relate back to previous UN reports from 2013, before MOJ & others. A report also referred to, which slightly post-dates that decision (27 May 2014), replicated in identical terms in a 2015 UN World Food Programme report, gives a youth unemployment figure for Somalia of 67%. How that figure was obtained, and why it should have stayed just the same from year to year, is not clear. However, Mr Masood relied on it to suggest that the prospects for a 50-year old job seeker must be even worse. There is nothing however to support that suggestion, beyond the opinion expressed by Professor Aguilar, as to which see 14 - 15.
19. Mr Masood went on to suggest that the 'country expert' evidence of Miss Mary Harper, despite the reservations expressed about it in AAW, had been accepted by the Tribunal in MOJ & others. He was not able to give me a reference for that, but her evidence was extensively discussed by them at paragraphs 161 - 201, and their views on it did not prevent their reaching the conclusions set out in the judicial head-note.
20. Conclusions In the end, the outcome of this case must depend on the country guidance set out in MOJ & others, particularly at (ix) - (xi), summarized at (xii). This appellant qualifies for consideration in terms of (ix): he needs to show, in terms of the criteria set out there, that he would have no real prospect of securing access to a livelihood on return (see (x) and (xi)). If so, then (see (xii)) he would face a real risk of having to go into a camp, and has established a real risk of article 3 harm.
21. Looking at the factors listed under (ix), I have dealt with them at 7: as I make clear at 8, the prospect or otherwise of earning a living is likely to be the crucial factor for this appellant. While he has experience of working as a baker here, there is nothing to show that would be of any particular use in Mogadishu (though Italian-style bakeries are still said to be running there). His departure in 1992, under very different circumstances, has left him without any continuing useful links; and his means of getting here in 2009 does not raise the question about his resources which might be the case with a trip not likely to have been funded from overseas. The appellant may have been living here quite satisfactorily for him on his job as a baker, thanks to his EEA status at the time, even after his marriage had come to an end, and on the hospitality of friends; but neither of those things leads me to conclude that he has any real prospect of earning his living on return to Mogadishu. It follows that he would face the relevant Convention risk there, and his appeal is allowed.

Appeal
(a judge of the Upper Tribunal)