Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05131/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th February 2017
Om 27th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mr Abdulrahman Ahmed
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss G Kiai (Counsel)
For the Respondent: Mr K Norton (Senior HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Swinnerton, promulgated on 27th October 2016, following a hearing at Hatton Cross on 10th October 2016. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a male, a citizen of Somalia, who was born on 2nd October 1986. He appealed against the decision of the Respondent dated 6th May 2016 to refuse to grant him asylum, humanitarian protection, or relief on human rights grounds. His claim is that if returned to Somalia he would face mistreatment due to his imputed political opinion and because of his fears that he would be killed by Al-Shabaab.
The Judge's Findings
3. The judge observed that the Appellant in his asylum interview had stated that six men with weapons from Al-Shabaab attacked his home, leading to people of the house fleeing for their safety, and that they managed to abduct the Appellant. As the judge probed the matter further, he came to conclude that, "the Appellant has therefore given completely inconsistent accounts as to whose house he was in when the attack took place and also as to whether anybody else was present in the house when the attack took place" (paragraph 19). This aspect of the account was rejected.
4. Second, the judge also then considered the issue as to whether the Appellant could return to live with his family and again noted that, "there is a clear discrepancy between the Appellant's account in his witness statement and the Appellant's account in the asylum interview as to with whom he had lived after his parents died" (paragraph 22).
Grounds of Application
5. The grounds of application contain two major points. First, that the judge failed to apply the applicable country guidance cases to the facts of the Appellant's case, such that MOJ (Return to Mogadishu) Somalia [2014] UKUT 00442 and AMM [2011] UKUT 445 were not properly applied with respect to the relevant factors that came into play in the Appellant's case. Second, the judge made a material mistake of fact in that he stated that the Appellant had not experienced any problems in Somalia prior to his abduction by Al-Shabaab in 2009, but the Appellant had stated that he was beaten by Al-Shabaab due to his "Rohan" condition at AI 109 and 118.
6. On 6th December 2016, permission to appeal was granted on the basis that the Respondent had accepted in this case that the Appellant was a member of the Ashraf clan and it was arguable that having dismissed the Appellant's account of past persecution as not being credible, the Tribunal then failed to assess the risk facing the Appellant on return to Somalia applying the country guidance to his particular circumstances and characteristics.
7. On 3rd January 2017, a Rule 24 response was entered to the effect that, the judge at paragraph 22, had concluded that, "I did not find the Appellant's account credible as to with whom he has lived whilst in Somalia and the ties that he has there". At paragraph 27 the judge made sustainable findings giving his reasons for the adverse credibility conclusions reached and these had not been challenged by the Appellant.
8. At the hearing before me on 20th February 2017, Miss Kiai appearing on behalf of the Appellant, referred to her first Ground of Appeal with the submission that the judge had failed to apply the country guidance case. In MOJ [2014] UKUT 00442, the Tribunal had adopted the guidance given in AMM [2011] UKUT 445, and it had gone on to say that a person returning to Mogadishu after a period of absence will look to his UK family, if he has one living in the city, for assistance in re-establishing themselves and securing a livelihood.
9. Although the 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".
10. Second, it was also stated in that case that, "the significance of clan membership in Mogadishu has changed. Clans now provide, potentially social support mechanisms and assists with access to livelihoods, performing less of a protection function than previously". In the Appellant's case, therefore, it was necessary to reach a conclusion as to whether the social support mechanisms existed for him.
11. Third, the case also stated that,
"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 the circumstances",
And then there are a series of circumstances set out such as the prospects of securing a livelihood, the availability of remittances from abroad, and the means of support during the time spent in the United Kingdom. None of these, submitted Miss Kiai, had been explored by the judge.
12. As far as the second Ground of Appeal is concerned, the judge had simply reached a material conclusion as to fact in that she had wrongly concluded that the Appellant had not been targeted by Al-Shabaab prior to 2009.
13. For his part, Mr Norton submitted that, although the judge refers to the case of MOJ, he would have to accept that findings of fact in the light of that country guidance case, are limited. This was despite the fact that the judge had disbelieved the Appellant's account and that account had not been challenged. The risk from Al-Shabaab was disbelieved. This was a case where, nevertheless, the Secretary of State was requiring the Appellant, not to return to Mogadishu where the country guidance cases would apply, but to his own home area, in respect of which the judge had disbelieved the Appellant's claim.
14. Nevertheless, he would have to accept that there was a paucity of findings, and given that this was the case, he urged that the Tribunal only make a finding of an error of law, and preserve thereafter, the credibility conclusions reached by the judge below, so that the only issue remaining before the Tribunal would be the feasibility of return to Somalia as a minority clan member.
15. In her reply, Miss Kiai disagreed with this submission and stated that the matter should be remitted back to the First-tier Tribunal for a hearing de novo because it was really quite artificial to simply get a decision maker to consider the feasibility of return of this Appellant, without looking at the surrounding circumstances and reaching conclusions as to fact in relation to those.
16. She gave as an example the judge's finding that (at paragraph 22), "I did not find the Appellant's account credible as to with whom he has lived whilst in Somalia and the ties he has there". This is because, without there being any findings in relation to who the Appellant had lived with, and as to whether he had any ties there, it was simply impossible to properly conclude, on the lower standard, as to whether the Appellant could return back to Somalia, and not least given that country guidance cases, which emphasise the importance of clan membership in terms of the support mechanisms that they are able to provide.
17. Second, regardless of the above, the fact was that the judge had made a mistake that the Appellant had never referred to beatings by Al-Shabaab prior to 2009, given that this was specifically stated by him.
Error of Law
18. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows. First, the strictures of the country guidance cases have not been applied, and these are quite important given the changed nature of the role of clan membership, as set out in MOJ [2014] UKUT 00412. As paragraphs (vii) to (ix) make clear the help from a clan membership "is only likely to be forthcoming for majority clan members, as minority clans may have little to offer" (vii). It was also made clear that the significance of clan membership is "social support mechanisms" and the assistance "with access to livelihoods" (viii). Particularly, given that the judge had not been able to conclude as to who the Appellant was living with (at paragraph 22), and whether this was with his family or not, and what ties he had there, this issue now needs to be properly explored in evidence again.
19. Second, the country guidance case makes it quite clear that "there will need to be a careful assessment of all the circumstances", before setting out a list of eight circumstances to which due regard may properly be had, and at least some of these need a proper evaluation.
20. Finally, it remains the case that the Appellant did refer (at AI 109 and 118) to have been beaten by Al-Shabaab due to his "Rohan" condition, and this was prior to 2009.

Notice of Decision
21. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed to the extent that it is remitted back to the First-tier Tribunal, to be heard de novo by a judge other than Judge K Swinnerton at the next available opportunity.
22. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 25th February 2017