Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05374/2016

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 20 March 2017
On 23 March 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

AAH
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M J Azmi, counsel instructed by Genesis Law Associates Ltd
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge AMS Green, promulgated on 25 October 2016. Permission to appeal was granted by First-tier Tribunal Judge Grant-Hutchison on 16 November 2016.

Anonymity
2. A direction was made previously and is reiterated below.
Background
3. On 16 March 2009, the appellant, aged 20, entered the United Kingdom using a false passport. He was convicted of possession of a false identity document shortly thereafter and sentenced to 9 months’ imprisonment and recommended for deportation. The appellant was released from prison at the end of his sentence but was given status documents after being confused with another person with the same name who had genuinely been granted refugee status.
4. On 14 February 2012, the appellant applied for a Home Office travel documents. That application was refused on 22 April 2013 owing to a lack of status entitling him to one.
5. On 12 April 2013, the appellant was convicted of battery and given a community punishment and on 27 January 2015, he was convicted of theft.
6. A decision to deport the appellant was issued on 21 October 2015 because the Secretary of State considered his presence in the United Kingdom was not conducive to the public good. Following that, the appellant submitted representations. On 13 May 2016, his protection and human rights claims were refused. These proceedings concern that decision.
7. In refusing the protection claim, the respondent considered the appellant’s account of fearing persecution in Somalia owing to being a member of the Ashraf clan and because his father was a police officer. The respondent concluded that there was no evidence that the appellant’s father had a particularly high profile and it was not accepted that the appellant had any profile of his own in Somalia. It was noted that the appellant had not received threats or experienced any difficulties since 2007 when he claimed to leave Somalia. The respondent relied on MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) and noted that clan membership no longer had the same significance and was unlikely to result in a risk to an individual. It was not accepted that the appellant had no support on return to Somalia and it was considered that he could make use of the assistance available from the Facilitated Returns Scheme. There was said to be evidence that returnees to Somalia obtained employment and took up prominent positions. Note was taken of the appellant’s reasons for not pursuing his asylum claim in Italy; that he also applied for asylum in Sweden and left that country to avoid being returned to Italy.
8. The appellant’s Article 3 claim, both protection-based and medical were rejected as was his Article 8 claim, with the respondent noting that the appellant had no spouse or partner; considering that there would be no very significant obstacles to his integration and there were no very compelling circumstances which outweighed the public interest in his deportation.
The hearing before the First-tier Tribunal
9. At the hearing before the First-tier Tribunal, the appellant was the sole witness. It was argued on his behalf that he had a legitimate expectation to continue to be treated as a recognised refugee even after the respondent realised her mistake. The judge rejected that argument. He further rejected the core facts of the appellant’s claim owing to a want of credibility and declined to depart from the country guidance set out in MOJ.
10. The judge found that the appellant could safely return to Mogadishu; that his health concerns were insufficiently severe to engage Article 3 ECHR; that his deportation was conducive to the public good and there were no compelling reasons to outweigh the public interest in maintaining effective immigration control.
The grounds of appeal
11. The grounds of appeal argued, firstly, that the judge had inadequately considered the evidence in relation to the existence of the appellant’s family in Somalia; that the appellant had access to financial support from friends in the United Kingdom; that the appellant worked as a shopkeeper in Somalia and could seek employment and that the appellant had not explained why he was unable to obtain financial support on return, having secured funding to come to the west. Secondly, it was argued that the judge failed to adequately assess the expert report of Dr Mullen and the “objective evidence” provided.
12. Permission to appeal was granted on the second ground, albeit permission was not specifically refused on any other ground.
13. The respondent’s Rule 24 response, received on 25 November 2016, argued that paragraph 3 of the grounds (which related to the first ground) amounted to disagreement with the judge’s findings. It was noted that the judge did not find the appellant to be a reliable witness, that his account was implausible and that he was an economic migrant. It was therefore open to the judge to find that the appellant could return to his family and access financial resources. The appellant had failed to satisfy the judge that he could not access economic opportunities despite evidence that returnees are taking jobs at the expense of those who remained in Somalia. The appellant would also have the benefit of financial support from the United Kingdom if he were to return voluntarily. For the judge to accept the submissions based on the report of Dr Mullen and background material, the judge found that he would need to depart from the country guidance in MOJ. The judge was not required to do so because he did not accept the core facts of the appellant’s claim and gave sound reasons for doing so.
14. The appellant lodged a response under Rule 25(2A) of the Rules on 7 December 2016 in which it was briefly stated that the respondent failed to respond substantively to all the issues raised in the grounds.
The hearing
15. Mr Azmi relied on both grounds. He argued that the judge's findings on credibility were flawed plus, there had been a failure to deal with the expert report. He took me to [20] of the decision and reasons, where the judge concluded that the appellant had family in Somalia. He submitted that this finding was contrary to the appellant's oral evidence recorded at [10 iv] of the decision where the appellant stated that the whereabouts of his family were not known.
16. Mr Azmi took me to paragraph 4 of the expert report and asked me to note that Dr Mullen gave evidence in MOJ; that he had interviewed the appellant by telephone and concluded that there were serious concerns regarding the appellant's safety in Mogadishu owing to a deteriorating security situation. The skeleton argument before the First-tier Tribunal cited specific paragraphs of Dr Mullen's report and this was relevant to the assessment of the appellant's credibility. He asked me to find that there had been material errors of law.

17. In reply, Mr Mills relied on the respondent's Rule 24 response as well as [17] and [18] of the decision. He argued that the judge found the appellant to be an unreliable witness. The judge found the appellant's account to be implausible and therefore the judge was entitled to say that he did not accept his evidence about lack of family; that he could not get support from friends or find work. The grounds were just disagreements with clearly sustainable findings. The judge addressed Dr Mullen's report at [20] of the decision.
18. Furthermore, Mr Mills commented that Dr Mullen was one of the experts in MOJ for the appellants and his opinion as to an ongoing risk in Mogadishu was considered by the presidential panel in the thorough Country Guidance case, decided just a year ago. Dr Mullen was seeking to say that the panel in MOJ was wrong. The same evidence from the expert was considered by the panel in MOJ and the judge at the First-tier was entitled to find no basis to depart from MOJ, particularly as he rejected his account of his circumstances in Mogadishu
19. Mr Azmi emphasised that the appellant had not spoken to his mother and sister in Somalia for years and he had last seen them on the border with Kenya, when his mother arranged for his departure from Somalia. With regard to the appellant funding his return, Mr Azmi asked me to note that a house had been sold to pay an agent to help the appellant leave but this would not be an option on return. As far as the expert report was concerned, MOJ was heard in 2014 and the report dated from 2016. The skeleton argument referred to MOJ and argued that the appellant fell within the individuals who would be at risk on return to Somalia. Dr Mullen was merely highlighting the current country conditions, without detracting from MOJ.
20. At the end of the hearing, I reserved my decision on error of law.
Decision on error of law
21. The grounds took issue with the judge's finding that the appellant had family in Somalia. By his own account, the appellant last saw his mother and surviving sister when he left Somalia via the Kenyan border. Furthermore, during his oral evidence, the appellant told the judge that he had a wife in Somalia whom he was financially supporting when he last lived there. In addition, the judge found that the appellant was not a credible witness for a series of sustainable reasons. In these circumstances, in the absence of any evidence that the appellant's mother, wife or sister were no longer living or had left Somalia, the judge was entitled to conclude that the appellant had family in Somalia.
22. The next criticism of the judge' reasons relates to his comment at [20] that the appellant has access to financial resources. The grounds argue that the assistance the appellant received from friends in the United Kingdom was not demonstrative of financial support. The judge did not say that it was. The judge merely states that there is no reason to believe that the appellant's friends would stop supporting him if he returns to Somalia given that he has received money from them in the United Kingdom. There is nothing objectionable regarding these findings.
23. The grounds criticise the judge's finding that the appellant could seek employment in Somalia. It was the appellant's oral evidence that he had worked in a shop in Somalia. The aforementioned evidence clearly supports the judge's finding. The grounds argue that the appellant's previous work experience was not demonstrative of his ability to secure employment. The judge did not say that it was; what he said was that he has only "limited work experience" and that previous work experience would “presumably” help him to secure employment.
24. In fact, the judge went further and considered the evidence before him that "returnees were taking jobs at the expense of those people who had never been away." There was no error in the judge's approach.
25. The last challenge to the judge's credibility findings relates to the judge's view that the appellant had not adequately explained why he could not secure financial support on return to Somalia. Mr Azmi argued that a house was sold to pay for an agent. It is important to note that the appellant gave very different descriptions of the method of his departure from Somalia to the Secretary of State.
26. In one account, he said his mother arranged an agent to help him to leave via the Somali/Kenyan border in 2007 and in the other he claimed to travel from Mogadishu to Ethiopia in 2008. Against this background, the judge was entitled to make the findings he did in relation to this matter.
27. Apart from the four criticisms addressed above, the judge at [17-18] explained that he found the appellant to be an unreliable witness and considered his evidence to be evasive and implausible. The judge did not accept that the appellant's father and brother had been killed nor that the appellant had been tortured. None of these findings have been challenged. The judge was further entitled to take into consideration the fact that the appellant had been dishonest in using a false Swedish passport to travel to the United Kingdom and his continuing criminal behaviour after serving his sentence for the first offence.
28. The expert report was based on a telephone interview with the appellant and the conclusions were based on the appellant's account being credible. The questions posed on the appellant’s behalf which were answered by Dr Mullen, included whether the appellant was likely to be targeted on return and the situation for someone without family or family support in Somalia. The grounds state that there was inadequate assessment of this evidence, which was only mentioned once, at [12[iv] of the decision. In fact, the judge also referred to this report at [20] of his findings, where he remarked that he was being asked to depart from MOJ. The judge further explained that because he did not accept the "core facts" of the appellant's claim, he was not prepared to depart from MOJ. Mr Azmi did not seek to argue before me that the appellant would be at risk of persecution in Somalia regardless of the credibility of his claim. Consequently, the judge was entitled to reject the expert evidence that the appellant would be unsafe in Somalia, in circumstances where his entire account was found to be lacking in credibility. There was no need for the judge to say any more.
29. The grounds amount to mere disagreement with the judge's decision. I conclude there was no error of law in the judge's findings and uphold his decision.

Conclusions

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

The decision of the First-tier Tribunal is upheld.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed
Date: 22 March 2017

Upper Tribunal Judge Kamara