Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09774/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 April 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE SHERIDAN

Between

Liban Mukhtar jama
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Saeed, Solicitor, Aman Solicitor Advocates
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS
1. By a decision dated 2 July 2020 Upper Tribunal Judge Finch set aside, but preserved several findings of fact made in, a decision of Judge of the First-tier Tribunal Lawrence promulgated on 13 January 2020. I now remake the decision of the First-tier Tribunal.
Background
2. The appellant is a citizen of Somalia born in October 1988. He claims to be a member of the Ashraf minority clan.
3. He claims that he was born in Mogadishu but that in 1991, as a consequence of the civil war, he and his family moved to Ceel Cade in Geda, southwest Somalia.
4. The appellant claims to face a risk of serious harm at the hands of Al-Shabab. He claims that in 2015 Al-Shabab targeted his family because his grandfather was a well-known Sufi leader. He claims that they killed his grandfather, tortured him and male family members, and kept his family under house arrest. The appellant claims that he managed to escape whereupon he travelled to Mogadishu, where he lived between 2015 and 2017 before leaving Somalia.
5. The appellant claims that during the approximately two years he spent in Mogadishu he moved between different IDP camps as he feared for his life. He claims that he left Mogadishu in 2017 and travelled to the UK, which he entered clandestinely in January 2018. He claimed asylum on 5 February 2018.
Preserved findings
6. Several findings by First-tier Tribunal Judge Lawrence were preserved by Upper Tribunal Finch. These are helpfully set out in Mr Saeed’s updated skeleton argument and are as follows:
(a) The appellant is a Somali national, originating from the Ashraf clan, which is a minority clan in Somalia.
(b) It is not reasonable to infer that the appellant’s family built up links to other friends and families and built a livelihood in Mogadishu that would remain useful now.
(c) The appellant’s account of Al-Shabab capturing the area of Ceel Cado and killing his grandfather was consistent with the ideology of Al-Shabab as considered by Professor Aguillar.
(d) The appellant’s account of being tortured and escaping was internally consistent throughout the report of Dr Hajioff providing powerful support for claimed torture at least.
(e) Dr Hajioff’s qualifications and expertise are such that his assessment of physical signs of harm (i.e. signs that the appellant had been tortured) and psychological signs of harm i.e. that the appellant suffers from chronic PTSD are reasonably likely to be reliable.
(f) The appellant’s account of his escape is credible.
(g) The appellant’s account of leaving his immediate family behind when fleeing is also credible.
(h) The appellant’s claim that he has not been able to regain contact with his immediate family in Somalia is credible.
(i) The appellant’s account of living in Mogadishu between 2015 and 2017 was consistent and it is credible that others who were supporting him were not in a comfortable position themselves and wanting to leave if possible.
(j) The adverse weight of Section 8 of the 2004 Act is minimal.
(k) The appellant, being a person returning to Mogadishu after a period of absence, would not be able to look to a nuclear family or close relatives living in the city for assistance.
(l) Assistance from the appellant’s clan members is unlikely to be forthcoming.
(m) The appellant’s ability to fund his journey indicates that he would be able to secure some limited support from the same sources on return to Somalia that they will be less likely to be prepared to assist the person to live in Mogadishu permanently.
Evidence
7. I heard oral evidence from the appellant, his mother and several of his siblings. The appellant and his mother both gave evidence through an interpreter. The other witnesses did not require an interpreter.
8. The evidence given by the appellant is that the only periods of his life in which he lived in Mogadishu are from his birth until the age of 3; and between 2015 and 2017, following his escape from Al-Shabab in Ceel Cade. He stated that he has no family, friends or connections in Mogadishu. He described how he moved between different IDP camps, as he feared for his safety; and primarily was in the southern area between Mogadishu and Afgooye. He stated that he considered himself to be from the Geda region, and not from Mogadishu, given that this was where he was educated and grew up.
9. With respect to his health, he stated that he has seen his GP on several occasions, and was told that he suffers from stress rather than PTSD.
10. The appellant’s evidence was that he speaks minimal English.
11. He gave an account of how his journey to the UK was financed. He stated that whilst held captive in Libya he telephoned an elderly woman who had been a follower of his grandfather, and that she raised $3,800 to secure his release. He stated that people were willing to donate money because they knew of his grandfather, who was an important Islamic scholar.
12. He stated that although he was provided with financial assistance to escape his captors in Libya he did not believe that the same people (or others) would provide him with assistance to reside in Mogadishu. He stated that his family in the UK did not financially assist him in his journey to the UK.
13. I then heard evidence from the appellant’s mother, who stated that she has ten children, seven of whom (including the appellant) live in the UK. She does not have contact with the children outside of the UK. Six of her children (including the appellant) live with her; another, who is a single mother, lives separately.
14. She gave evidence that in 2001 she applied to the respondent in order for her children in Somalia including the appellant to be granted entry clearance to the UK. She stated that although permission was given for the children to enter the UK this could not be implemented because she lost contact with them due to the civil war.
15. She stated that she did not know who had helped the appellant travel to the UK from Somalia but stated that the appellant’s grandfather was an important Islamic scholar and this meant that many Somalis were willing to provide him with assistance.
16. She stated that she was born in Mogadishu and lived there until, because of the civil war, she fled to the Geda region, where she lived before coming to the UK. She stated that she has a family member in Norway. She stated that her family in Norway are elderly and would not be in a financial position to assist the appellant were he to be returned to Somalia.
17. The next witness to give evidence was the appellant’s brother JMJ. His evidence was that since November 2021 he has been earning an income of approximately £1,780 per month net. He stated that he requires the entirety of this to meet basic expenditure, primarily on behalf of his family, in respect of whom he describes himself as the “main breadwinner”, and therefore he would not be in a position to send funds to the appellant in Mogadishu. He gave evidence that he met his father approximately a decade ago in the UK; but has not seen or heard from him since and he does not know where his father lives.
18. I then heard evidence from another sibling of the appellant, FJ. FJ stated that he is a student and that his only income is the maintenance loan that he receives. His evidence in respect of his father was that he saw him many years ago in the UK but has no idea where he is now.
19. The next sibling to give evidence was AJ. His evidence was that he is currently unemployed, relying on Universal Credit. Like his siblings, his evidence was that he does not know where his father is located. He stated that he thinks he was around 9 years old when he last saw his father.
20. I then heard evidence from HJ, who is a student. Her witness statement states that she works part-time in McDonalds but her evidence before me was that she has recently stopped working there. She, too, stated that she did not know where her father lives.
21. The appellant submitted a report, dated 6 July 2019, by the consultant psychiatrist Dr Hajioff. In the third paragraph of the report Dr Hajioff listed the documents that he had considered. The list does not include any GP or other medical records. The report concludes that the appellant suffers from chronic PTSD and has injuries consistent with his account.
22. The appellant also submitted a report by Mr Hoehne, an expert on Somalia, dated 24 January 2021. In the report, Mr Hoehne addressed several questions that had been posed to him concerning the situation in Somalia and the risks (and conditions) the appellant is likely to face on return.
23. The appellant also submitted a country expert report by Prof Aguillar and a considerable amount of other evidence about the security and economic situation in Somalia.
Respondent’s Submissions
24. Mr Tufan accepted, in the light of the preserved findings of fact from the First-tier Tribunal, that the appellant would be at risk from Al Shabab in Ceel Cade. However, he maintained that whether or not the appellant faces a risk in Ceel Cade is irrelevant because the appellant’s home area, to which he would be returned, is Mogadishu. He submitted that as the appellant was born in Mogadishu, his family had lived there, and he spent approximately two years in the city prior to coming to the UK, Mogadishu, and not Ceel Cado, should be treated as the appellant’s home area for the purposes of his protection claim. Therefore, the relevant question to address is whether the appellant faces a risk of persecution, or treatment violating article 3 ECHR, in Mogadishu; not whether it is reasonable to expect the appellant to relocate internally to Mogadishu.
25. Mr Tufan argued that the recent country guidance case of OA (Somalia) Somalia CG [2022] UKUT 00033 (IAC) makes clear that it would not breach Article 3 ECHR for the appellant to be returned to Mogadishu.
26. Mr Tufan argued that if I was not with him on the issue of where the appellant’s home area was - and I found that the appellant would be internally relocating to Mogadishu - the appeal should still not succeed because internal relocation would not be unreasonable or unduly harsh. He relied on the findings of the Presidential Panel in SB (refugee revocation; IDP camps) Somalia [2019] UKUT 00358 IAC where there is a discussion of factors relevant to the reasonableness of relocation to Mogadishu. He also relied on paragraph 356(m) of OA (Somalia), where it is stated:
It will 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 would be reasonable for internal relocation purposes.
27. Mr Tufan submitted that the appellant’s evidence about the support he received because of the status of his grandfather demonstrates that he would not be without support in Mogadishu. He argued that if, following a phone call to a follower of his late grandfather, the appellant raised $3,800, it follows that in Mogadishu he would receive support, at least initially, that would enable him to survive at a reasonable level.
28. He also argued that there was very limited evidence before the Tribunal about the appellant’s mental health. He noted, in particular, the absence of GP records in the appellant’s evidence. He submitted that there was no evidence that would support the contention that the appellant would be unable to work in Mogadishu because of his mental health.
29. Mr Tufan also argued that the appellant would not face a risk from Al-Shabab in Mogadishu. He drew attention to what is said in both MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) and in OA (Somalia) about Al-Shabab not having control or influence in Mogadishu. He noted in particular paragraph 407(b) of MOJ, which OA states remains applicable, where it is stated that:
There has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city.
Appellant’s Submissions
30. Mr Saeed argued, firstly, that the starting point must be that the appellant’s home area is Ceel Cade and not Mogadishu, given that the appellant lived almost all of his life, prior to coming to the UK, in that area. He noted that the appellant did not voluntarily move to Mogadishu, but fled there to avoid a risk in his home area.
31. Mr Saeed then argued that it was unnecessary to determine whether it would be reasonable or not for the appellant to relocate to Mogadishu because the expert evidence establishes that the appellant would in fact be at risk from Al-Shabab in Mogadishu. He relied on paragraphs 51 – 54of Dr Hoehne’s report where the following is stated:
“51. The Country Policy and Information note Somalia: Al-Shabab, Version 3.0, November 2020 mentions in Section 6.6.3:
According to sources interviewed for the DIS 2017 report ‘Al-Shabab defectors are … considered a prime target for al-Shabab, as they are regarded as having sensitive information about al-Shabab … When asked if a defector could relocate safely to urban centres with AMISOM presence, for instance to Mogadishu, several sources pointed out that al-Shabab has informants everywhere, including in Mogadishu, and would be able to find a defector. ‘Sources explained that when al-Shabab tries to track down the defector they use clan networks and bio-data collected by al-Shabab on each individual member … A defector who is tracked down will likely be killed.
52. Mary Harper, the Africa Editor of BBC News, who has reported on various parts of Africa and especially Somalia over the past decades, and who has published a book entitled Everything You Have Told Me Is True: The Many Faces of Al Shabab mentions in her book in detail how Al Shabab is tracking down individuals it considers as its enemies. Such individuals do not only include high-profile members of government or security institutions but also ordinary Somalis who once took a stance against Al Shabab. This is also in line with what I heard from Faduma Abukar Mursal, the Somali Swiss PHD student who spent time field-researching in Mogadishu between late 2015 and early 2017. She told me afterwards that many ordinary people who behave in ways seen as oppositional or violating Islamic provisions by local Al-Shabab actors hiding in Mogadishu, received threatening messages. These messages are taken very seriously by locals, since punishment by Al-Shabab is a reality, even in Mogadishu which is officially under government control.
53. [The appellant] belongs to the Ashraf minority group whose members, as I mention in paragraph 36 above, often are religious teachers. Traditionally, they are Sufis. This is confirmed by [the appellant] who stresses in his witness statements that his grandfather was a Sufi cleric and outspoken against Al-Shabab, who are Salafists. This conflict over religious positions, in my considered opinion, certainly played a role regarding the attack of Al-Shabab on [the appellant’s] grandfather while they live in Gedo region in 2015. Subsequently, [the appellant] was restricted in his movements by the local Al Shabab forces but he managed to flee. All this was considered in the determination of Judge Lawrence dated 13 January 2020 and found plausible. Thus, [the appellant] is clearly someone who resisted Al-Shabab.
54. The question is: will, upon [the appellant’s] return to Mogadishu, local Al-Shabab forces or spies in Mogadishu be able to track him down and punish him? In my view, it is difficult to answer this question with great certainty. However, given information on this matter provided above (paragraphs 51 and 52) there is in my view a high chance that upon return to Mogadishu, [the appellant] will eventually come to the attention of local Al Shabab actors. The group clearly has a tight network of local informants and spies in the Somali capital. This has been documented extensively (also above). There needs to be only one instance at which [the appellant] comes to the attention of a local Al Shabab actor in Mogadishu which then can set in motion a ‘little investigation’. Such an investigation can quickly lead to more information about [the appellant] including from which family he is and what happened in 2015 in Gedo region. If that would happen – and it is not unlikely in my eyes – it would have very serious consequences for the appellant, up to the level of severe punishment by Al Shabab forces operating clandestinely in Mogadishu.”
32. Mr Saeed argued that this evaluation of risk by Mr Hoehne is not inconsistent with OA and MOJ, because those cases are concerned with generalised risk from Al-Shabab in Mogadishu, not an individual being targeted for a specific reason.

33. With respect to internal relocation, Mr Saeed argued that even if he is wrong about the appellant facing risk from Al-Shabab in Mogadishu, he should still succeed in his protection claim because internal relocation would be unreasonable and unduly harsh. He maintained that internal relocation would be unduly harsh because of a combination of factors: the appellant’s poor mental health, the lack of family or other support, the difficult circumstances he will face, and his evidence about how he was forced to live between 2015 and 2017.
Analysis
34. The first issue to determine is whether the appellant’s home area is Ceel Cado, such that he would be relocating to Mogadishu; or whether he is from Mogadishu and would be returning to that city. This is significant because assessing whether internal relocation from Ceel Cado to Mogadishu would be unduly harsh entails the application of a different test to that applicable to assessing whether, in Mogadishu, the applicant faces a risk of persecution or treatment contrary to article 3 ECHR.

35. Ceel Cado is where the appellant was raised and educated, and where his family had a home and household. Although he was born in Mogadishu, he moved to Ceel Cado with his family when he was very young. During the two years he spent in Mogadishu before leaving Somalia (between 2015 and 2017) he did not establish a household or permanent residence, and moved from place to place. His residence in Mogadishu at that time was temporary and transient. Accordingly, I am satisfied that at the date he left Somalia his home area was still Ceel Cado.

36. Mr Tufan stated that, in the light of the preserved findings of fact from Judge Lawrence’s decision, it was accepted by the respondent that the appellant would face a risk of persecution (by Al-Shabab) in Ceel Cado. The question to be determined, therefore, is whether the appellant can be expected to relocate to Mogadishu.

37. There are two issues to address when assessing whether the appellant can be expected to relocate to Mogadishu. The first is whether he will be exposed to a real risk of serious harm or persecution in Mogadishu. If he will, that is sufficient for the appeal to be allowed. The second issue, which only arises if there is no such risk, is whether, taking account of all relevant circumstances in Somalia, it is reasonable to expect the appellant to relocate or would be unduly harsh to expect him to do so.

38. Dr Hoehne is a recognised and experienced expert on Somalia. His expertise was not questioned, in any way, by the respondent. Nor did Mr Tufan, in his submissions, criticise or take issue with any aspect of his report. In paragraphs 51 – 54 of his report, Dr Hoehne set out in detail why he reached the view that the appellant would face a serious risk from Al-Shabab in Mogadishu. This included that:

(a) Al-Shabab is known to track down individuals it considers to be its enemy.

(b) Al-Shabab considers even ordinary people who have opposed it to be its enemies.

(c) Al-Shabab are likely to consider the appellant an enemy because his grandfather was a Sufi cleric who opposed them and the appellant fled from Al-Shabab when his movements were confined by them.

(d) Al-Shabab has informants/spies throughout Mogadishu.

(e) There is a high chance that the appellant would come to the attention of local Al-Shabab actors/informants.

(f) If there is just one instance of the appellant coming to the attention of such an informant, the appellant might face very severe punishment by Al-Shabab operatives acting clandestinely in Mogadishu.

39. I agree with Mr Saeed that Mr Hoehne’s reasoning is clear and well thought out. Mr Tufan submitted that OA is a very recent Country Guidance concerning Mogadishu and no basis had been given to depart from it. However, the analysis of Mr Hoehne summarised above does not, in my view, constitute a departure from OA. OA, as well as MOJ, makes clear that Al-Shabab does not control, or have a significant presence, in Mogadishu. But that does not mean that it does not have informants and operatives within the city who might be able to identify a perceived enemy and, acting clandestinely, cause him serious harm.

40. In the light of (a) the respondent’s acceptance that the appellant faces a real risk of persecution at the hands of Al-Shabab in Ceel Cade; and (b) the evidence of Mr Hoehne, which I accept, that (i) there is a real risk that the appellant is considered by Al-Shabab to be an enemy, and (ii) there is a real risk that he might come to the attention of an Al-Shabab informant in Mogadishu, I am satisfied that there is a reasonable degree of likelihood that the appellant will be exposed to serious harm or persecution in Mogadishu.

41. As I have found there to be a real risk of the appellant being exposed to serious harm or persecution in Mogadishu, it is not necessary to consider whether internal relocation would be unduly harsh.
Notice of Decision

The appeal is allowed on the basis that removing the appellant from the UK would breach the UK’s obligations under the Refugee Convention.

Direction Regarding Anonymity

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

D. Sheridan

Upper Tribunal Judge Sheridan

Dated: 20 May 2022