Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00018/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd November 2016
On 7th December 2016

Before

UPPER TRIBUNAL JUDGE COKER

Between

MOHAMED JIMACALE
(anonymity direction not made)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H Short, counsel, instructed by Turpin and Miller solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant was granted permission to appeal because it was "arguable that in the assessment of the appellant's circumstances on return to Somalia in the Article 3 and Article 8 assessment, the First-tier Tribunal judge took an incorrect approach particularly concerning the appellant's ability to support himself in Somalia by working given his limited employment history, special needs diagnosis etc".

Immigration history
2. The appellant is a Somali national, born on 5th January 1989. He left Somalia aged about 10 or 11 years and arrived in the UK aged 13 for family reunion with his father who had been recognised as a refugee.
3. The appellant was convicted in 2007 of having an article with a blade or sharp point. The index offence was for possession and supply of Class A drugs for which he was arrested and charged on 25th March 2013, convicted on 2nd December 2013 and sentenced to five years' imprisonment on 12th May 2014. He was released on licence in April 2016.
4. On 8 February 2016, the respondent made a deportation order in accordance with the automatic deportation provisions and certified that he was, subject to rebuttal, presumed to be a danger to the community, pursuant to s72 Nationality Immigration and Asylum Act 2002.
5. There was no dispute that he is a minority clan member.
First-tier Tribunal decision
6. The First-tier Tribunal judge found that the appellant had not rebutted the s72 presumption. Permission to appeal that finding was not sought and it therefore stands.
7. The First-tier Tribunal decision is muddled. The judge finds the appellant has not rebutted the s72 presumption. He considers whether, in the context of the country guidance case of MOJ & others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) the appellant can no longer avail himself of the protection of the Refugee Convention because the circumstances in which he was recognised as a refugee have ceased to exist. Having concluded that he cannot, he then finds that his deportation would not result in a breach of Article 3.
8. Having reached that conclusion, the judge then proceeds to consider whether the deportation would be a breach of Article 8. Having referred to the Immigration Rules being a 'complete' code, he nevertheless considers the evidence before him outside the Rules. In reaching his conclusion that the deportation would not be a breach of Article 8, the judge considers the appellant's social and familial ties and his private life in the context of his serious criminal conviction. The judge considers all relevant matters in deciding whether deportation would be disproportionate. Although the decision is somewhat muddled, the judge plainly considers all relevant matters in the context of Article 8 and finds that there is no material error of law in his conclusion that deportation would not be a breach of Article 8.
9. In so far as Article 3 is concerned, the muddle in the decision has infected those findings. Although the judge refers to MOJ and recites the headnote, refers to him being from a minority clan, that he will not have remittances from the UK and has no finance, the judge refers to significant obstacles but also to those obstacles not being very significant. It is not clear what the judge means by this or what the consequences would be in the context of Article 3 and the risks on return to Mogadishu. Mr Walker accepted that there was some lack of clarity in the judge's findings with reference to MOJ but submitted that when read as a whole the decision could stand. I do not agree. The muddled decision of the judge in considering the relevance of MOJ in the context of the Article 8 discussion rather than risk on return amounts to a material error of law in so far as the decision on risk on return in a protection context is concerned because of the failure to make specific findings on risk
10. At the hearing before me I found the decision by the First-tier Tribunal judge on Article 8 was not infected by a material error of law but that the decision on the availability of Article 3 protection. I set aside the decision reached by the First-tier Tribunal judge on Article 3 but the decision on Article 8 stands. The findings of fact made by the First-tier Tribunal judge stand.
11. Both parties agreed that there was no requirement for further evidence. I proceeded to hear submissions from both parties and reserved my decision on the substantive issue of whether the appellant's deportation would be a breach of his Article 3 rights.
Remaking the decision
12. The findings of fact retained are:
(i) The appellant was born on 5th January 1989 in Somalia; he left Somalia aged 10 or 11 to travel to Ethiopia and then travelled to the UK on 22nd March 2002 aged 13 to join his father who had been recognised as a refugee.
(ii) The appellant is from a minority clan and has no clan affiliation; he is unlikely to be able to have family or clan associations to call upon for assistance.
(iii) The appellant has no contact with any family members who may be in Somalia.
(iv) There is no financial support available to him. His brother, with whom he lives, could provide him with employment (in his football coaching company) and somewhere to live in the UK but nothing else. His partner had encouraged him to find employment since his release from prison on licence.
(v) He has no adverse profile in Somalia either as a minority clan member, or as a westernised returnee.
(vi) He is a westernised non-practising Muslim.
(vii) He speaks fluent English; he spoke Somali until at least the age of 13/14 and although his language skills may have become rusty he will have subsisting skills and will swiftly be able to reacclimatise himself to the Somali language. (The OASys report says the appellant confirms he continues to be able to speak Somali.)
13. The appellant claims that he has learning difficulties. Although not directed by his representative to evidence that supported that assertion I subsequently found in the papers before me a reference from his form tutor at Acton High School for admission to William Morris Academy dated 23rd May 2005 which states "Mohamed came to AHS from abroad 05/02. He was placed on SEN record for moderate learning difficulties 17/12/02. In 7/12/04 was added to Action plus + saw school counsellor". There is no other evidence of learning difficulties or what the consequences of this are or were in his day to day life or ability to function. The school reports relied upon refer to his positive attitude, that he completed sixth form at William Morris Academy, that his punctuality and attendance have been "fantastic" and that he was "hardworking and well motivated". The OASys report specifically considers whether he has learning difficulties and records "no problems". The Report specifically records that he has no problems with reading, writing or numeracy and that he has "no problems' regarding his attitude to education/training. I am satisfied that although he may have had some difficulties when he first arrived these were not prolonged and/or have not resulted in any long-term problems such as would impede his ability to access education or training or employment. He has, according to the OASys report, obtained GCSE's (Grade C) in 3 subjects English, Maths and an unidentified subject together with a BTEC pass in Business Studies. He completed vocational training in, amongst others, painting, decorating and bricklaying whilst in custody.
14. The OASys report considers the appellant's employment history and records that he would not be unemployed on release but that there had been some previous employment problems. These problems related to him leaving his father's home after an argument which left him homeless and it was this that led to him associating with those with whom he committed his criminal offences and thus to him no longer being employed. After leaving education he had worked as a football coach with Chelsea Football club for 4-5 years until his arrest.
15. The OASYs report records that there was no evidence the appellant had any psychological issues, that he said he was not socially isolated and was reasonably happy with himself. The report (prepared on 9th March 2015) records the appellant as saying he wanted to complete courses in gym, tiling, hospitality and hairdressing to improve his chances of employability on release from custody. He is assessed as at low risk of re-offending. It is not apparent from the evidence the parties put before me whether he did in fact complete those courses or any of them.
16. Included in the material relied upon by the appellant is a certificate as a peer mentor which notes his good communication skills and teamwork, wall and floor tiling Level 1 award City and Guilds, professional cleaning skills, football coaching.
17. Ms Short submitted, in essence, that whilst the appellant has subsisting language skills, there was no realistic prospect of the appellant living in a community in Mogadishu such as to enable his language to improve and no realistic prospect that he would be able to access any support from his clan. He has no experience of living in Somalia since he was a young child and that although he has gained some basic skills whilst in custody this was no indication that he had a realistic possibility of obtaining employment. The respondent's own guidance and Amnesty all indicate that the situation in Mogadishu has deteriorated since MOJ was reported and that the appellant would not be able to access employment with the consequent result that he would have to live in an IDP camp.
18. Mr Walker submitted that the guidance relied upon was relevant to outside Mogadishu, not Mogadishu. He relied upon the findings in MOJ of the availability of employment and that although there was a finding that this appellant would not have financial support from his family and that there were no family or clan members he could turn to for support, he had a full employment record prior to his arrest and had since acquired skills and certificates additional to those he previously held. Mr Walker submitted that the appellant was well placed over others returning, and had prospects of securing a livelihood on return to Mogadishu.
19. The issue at large in this appeal is whether there is a realistic prospect the appellant will not be able to access a livelihood such that he would have to resort to an IDP camp although it is now clear from Said [2016] EWCA Civ 442 that a real risk of ending up in an IDP camp in Mogadishu does not result in the appeal falling to be allowed on the basis of rights protected by Article 3 of the ECHR. It was not argued that he was anything other than an "ordinary civilian" although it was submitted, as can be seen above, that the situation in Mogadishu had deteriorated to the extent that he would be at real risk of being persecuted or real risk of harm.
20. The headnote of MOJ, where relevant to this appellant, reads as follows
(ii) Generally, a person who is "an ordinary civilian" (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 3 of the ECHR or Article 15(c) of the Qualification Directive. In particular, he will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country.
(iii) 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. That was not the case at the time of the country guidance given by the Tribunal in AMM.
(iv) The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered as a whole that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab's resort to asymmetrical warfare on carefully selected targets. The present level of casualties does not amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk.
(v) It is open to an ordinary citizen of Mogadishu to reduce further still his personal exposure to the risk of "collateral damage" in being caught up in an Al Shabaab attack that was not targeted at him by avoiding areas and establishments that are clearly identifiable as likely Al Shabaab targets, and it is not unreasonable for him to do so.
(vi) There is no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including for recent returnees from the West.
(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 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.
21. Paragraphs 337 to 343 of MOJ consider the significance of clan membership and paragraphs 344 to 352 consider the "economic boom".
Significance of clan membership in Mogadishu today
337. The evidence establishes clearly that, in Mogadishu, there is no inter-clan violence taking place and no real risk of serious discriminatory treatment being experienced on the basis of clan. We have set out above the broad range of evidence to this effect, including comments from NGOs and others well placed to comment on the situation in Mogadishu today, including these, that were set out in Dr Mullen's report and discussed above at paragraphs 79:
"?It does not matter whether you belong to a strong or a weak clan, or an ethnic minority group? The clan has now become a social structure rather than a protective structure."
"Clan protection is no longer important as there are no clan based militias in Mogadishu. Persons returning from abroad are not at particular risk because of their clan affiliation";
"?it is a huge step forward that clan affiliation is no longer a concern. Even marginalized groups such as the IDPs and minority groups are no longer marginalized, harassed or intimidated only because of their clan affiliations. Thus, the security situation for members of small, weak clans and ethnic minority groups has increased considerably during the last year. It is not important which clan or group you belong to.";
"The representatives of an international agency, Mogadishu, agreed that the clan is no longer a main issue in Mogadishu? According to Mohamed Farah Siad, Mogadishu, clan is 'zero' today in Mogadishu; clans do not offer any protection as there are no clan militias threatening people. Clanism is only common among "primitive clans in the bush."
338. This was reinforced by the expert evidence, Ms Harper confirming that she had not seen any evidence of inter-clan violence and Dr Hoehne saying that there are no clan militias as such. If and when a need arises, a person will assemble a group drawn from his own clan to address a particular purpose. Ms Harper's evidence that militias were still to be regarded as clan-based groups that could be activated when needed by powerful business figures or politicians does not sit comfortably with the evidence of Dr Mullen and Dr Hoehne who spoke of militias being "assembled" when needed, rather than remaining intact to be "activated", or with the documentary evidence generally. Thus, we do not accept that in Mogadishu today there exist clan based militias in the sense of formal armed groups assembled to provide on going protection to clan members in a given area and exerting de facto control over the lives of local inhabitants.
339. That is not to say that clan membership has no significance to those living in Mogadishu. It was observed in the Danish 3 report that:
"On the other hand, whenever a person is planning to settle in Mogadishu he or she will most likely consider his or her clan affiliation before deciding where to settle down."
And one local commentator has observed that:
"? clans are only relevant when it comes to business, marriage, respect and work, and stated that "clans should not be involved in politics".
Which chimes with what is said in the Danish 3 report:
"The clan has now become a social structure rather than a protective structure. This could be due to lessons learned during the previous clan conflicts and the civil war. People are now relating to government structures rather than clans, especially when it comes to business."
And a little later in the same report:
"Regarding access to livelihood in Mogadishu, UNHCR-Somalia explained that the presence of a nuclear family is a requirement for livelihood support, as clan will not help with livelihood."
340. We find that the evidence relating to Mogadishu does indeed establish a change in the significance of clan from being a protective mechanism to one of social and economic support. That does not mean that clan membership has no relevance to protection issues at all. Support for that view is found, again in the Danish 3 report:
"UNHCR-Somalia, Mogadishu, confirmed that someone in Mogadishu will not be at risk today solely because he/she is of a different clan, although clan dynamics in combination with other factors are an important element when considering risk, including for the IDP population. It is obvious that one is safer when he or she is residing in an area dominated by his or her own clan or if one has good relations with a dominating clan."
Where a person sees a need to make arrangements for personal security for a particular purpose he will probably look to his own clan first of all, those being persons from whom he might anticipate assistance being available more readily, especially if he does not have significant financial resources with which to pay for "commercial" security. Also, some trades are dominated by one particular clan so that access may be made easier with clan sponsorship but there is no evidence that an individual would be barred because of an absence of it.
341. There is evidence also from a number of sources that the importance of what has been termed "the nuclear family" has become more significant than membership of a clan. This was recognised by UNHCR in the report dated 25 September 2013 which is mentioned above and to which we will return below. It is plain that the significance of clan membership has changed and, increasingly, residents of Mogadishu look to their nuclear family for support, protection and access to a livelihood. But, of course, the close relatives involved would invariably also be members of the same clan but it is the family relationship, rather than clan membership, that is of significance. It is, perhaps, entirely unsurprising that people choose to live in areas where relatives are established or that district police forces, being drawn from the area in which they operate, reflect the numerical dominance of the clan predominately present:
"UNHCR-Somalia, Mogadishu, confirmed that someone in Mogadishu will not be at risk today solely because he/she is of a different clan, although clan dynamics in combination with other factors are an important element when considering risk, including for the IDP population. It is obvious that one is safer when he or she is residing in an area dominated by his or her own clan or if one has good relations with a dominating clan."
342. It follows from this that for a returnee to Mogadishu today, clan membership is not a potential risk factor but something which is relevant to the extent to which he will be able to receive assistance in re-establishing himself on return, especially if he has no close relatives to turn to upon arrival. There remains an aspect of protection to be derived from clan membership, which we discuss in more detail below when considering issues of sufficiency of protection. But this is more to do with having access to a support network providing the opportunity to put in hand security measures when needed rather than a situation of being able to look to an existing clan militia to provide protection. But this source of assistance must not be overstated. As explained by Ms Harper, in her oral evidence, in response to a question concerning what help a returnee might expect from his clan:
"None at present. If you arrive in Mogadishu and do not know anyone at all, you might start asking for fellow clan members in the hope that they might do more for you than others. But you could not expect anything from them.
343. We understand that to mean that while there was no guarantee that help would be available from clan members outside the close family network of a returnee, at least there is more likelihood of such a request being accommodated than if made to those unconnected by the bond of clan membership. That is, perhaps, wholly unsurprising. However, it should be noted that in the UNHCR January 2014 report the view was expressed that a returnee might be rather more confident of receiving help from his clan, if not a minority clan member:
"Persons belonging to minority clans? remain at particular disadvantage in Mogadishu? There remains a low sense of Somali social and ethical obligation to assist individuals from weak lineages and social groups. This stands in stark contrast to the powerful and non-negotiable obligation Somalis have to assist members of their own lineage."
The "Economic Boom"
344. The economic revival of Mogadishu can be described only as remarkable, considering what is known about conditions in the city since the civil war began in 1991. Each of the expert witnesses has addressed this in their evidence that we have considered above. It is perhaps well described by a report of the New York Times of April 2012:
"But people here are sensing the moment and seizing it. More than 300,000 residents have come back to the city in the last six months?.. The economic boom, fuelled by an infusion of tens of millions of dollars, much of it from Somalis flocking home from overseas, is spawning thousands of jobs that are beginning to absorb young militiamen eager to get out of the killing business?"
An international agency referred to in Dr Mullen's report is recorded as saying:
"Mogadishu is now a 'buzz', people are going around minding their own business and there is an increasing freedom of movement for everyone."
345. It is beyond doubt that there has been huge inward investment, large-scale construction projects and vibrant business activity. Land values are said to be "rocketing" and entrepreneurial members of the diaspora with access to funding are returning in significant numbers in the confident expectation of launching successful business projects. The question to be addressed is what, if any, benefit does this deliver for so called "ordinary returnees" who are not themselves wealthy businessmen or highly skilled professionals employed by such people.
346. According to the respondent, a striking feature of developments in Mogadishu since AMM is the evidence that "huge numbers" of people have returned to Mogadishu, that is said to be indicative of a considerable reduction in levels of violence and improvements in security. Some local NGO sources have said that there were 300,000 returning residents to Mogadishu in the six months between November 2011 and April 2012 alone. By August 2012 it had been estimated that more than 500,000 people had moved back to the capital including the vast majority who had fled since 2007.
347. Dr Hoehne's view was that very few people indeed benefit from this. He said when asked who benefited:
"A tiny proportion. 89% are poor. The remaining 20% will be a bit better than being poor. A little better than "barely surviving". Possibly 1% or 2% of the population benefit from the last two years economic development."
As we have observed, the arithmetic disclosed by that answer is problematic but we have more difficulty with the view expressed.
348. Pressed further to explain who does benefit from the economic development in Mogadishu, Dr Hoehne said:
"A very tiny fraction of the elite. The vast majority of people are struggling to survive?"
349. This is a view that is not altogether easy to understand and we are unable to agree with it. The evidence is of substantial inward investment in construction projects and of entrepreneurs returning to Mogadishu to invest in business activity. In particular we heard evidence about hotels and restaurants and a resurgence of the hospitality industry as well as taxi businesses, bus services, drycleaners, electronics stores and so on. The evidence speaks of construction projects and improvements in the city's infrastructure such as the installation of some solar powered street lighting. It does not, perhaps, need much in the way of direct evidence to conclude that jobs such as working as building labourers, waiters or drivers or assistants in retail outlets are unlikely to be filled by the tiny minority that represents "the elite". Indeed, Dr Hoehne suggested that SSM, on whose behalf he was being asked questions:
"could probably get a job as a waiter?"
although he said that there would probably be much competition.
350. The respondent submits that, given the inward investment that has been received into Mogadishu, said to be tens of millions of dollars, it is impossible to see how the benefits could be restricted to such a tiny minority. The respondent refers to evidence from the Department for International Development in Somalia report - Autumn Update 2013 in which it is asserted that 56,900 jobs have been created since May 2011 and a further 45,000 new private sector jobs will be created.
351. Further, there is evidence before the Tribunal, identified by Dr Mullen, to the effect that returnees from the West may have an advantage in seeking employment in Mogadishu over citizens who have remained in the city throughout. This is said to be because such returnees are likely to be better educated and considered more resourceful and therefore more attractive as potential employees, especially where the employer himself or herself has returned from the diaspora to invest in a new business.
352. For those reasons we do not accept Dr Hoehne's evidence that it is only a tiny elite that derives any benefit from the "economic boom". Inevitably, jobs have been created and the evidence discloses no reason why a returnee would face discriminatory obstacles to competing for such employment. It may be that, like other residents of Mogadishu, he would be more likely to succeed in accessing a livelihood with the support of a clan or nuclear family.
22. The appellant relied upon reports from the UNHCR and Amnesty. In particular, the UNHCR wrote a report considering the cessation of the appellant's refugee status dated 10th July 2015 which refer, inter alia:
To the UNHCR paper Position on returns to Southern and Central Somalia 17 January 2014; to the Human Rights Watch World report 2015 - Somalia; a report by the UN Secretary General to the UN Security Council dated 25 January 2015.
23. The UNHCR January 2014 report was considered by the Upper Tribunal in MOJ in the context of all the other evidence before them which led to the decision as referred to above. The Human Rights Watch 2015 report considers events in 2014. The references to Al Shabaab reflect the evidence that was considered in MOJ regarding the targeting of civilians by Al Shabaab but the report does not indicate a deterioration in the situation in Mogadishu such that it requires any alteration in consideration of risk. The report by the UN Secretary General as referred to by the UNHCR refers to a spike in attacks in Mogadishu "targeting primarily officials of the Federal Government" and refers to a hotel attack. Again these type of incidents were considered in MOJ and there does not appear from these documents to have been a deterioration. In any event these are the type of targeted attacks that were either not aimed at 'ordinary civilians' or were aimed at identifiable target areas that it would be reasonable to expect civilians to avoid.
24. The UNHCR position on Returns to Southern and Central Somalia Update 1 23 May 2016 refers to continued volatility in Somalia and states, in broad terms, that particular consideration has to be given to the circumstances likely to be faced by individuals upon return. There is reference to the Joint Strategy and Operational Plan envisaging the return of 435,000 Somali refugees in phases from 2015 to 2019. The report refers to clan violence but it is not possible to ascertain from the report the basis upon which that reference is made or the evidence considered which undermines the conclusion reached in MOJ. As was repeatedly said in MOJ, the conditions and risk in Mogadishu, from which Al Shabaab has withdrawn, are very different from conditions outside the city.
25. The Home Office Country Information and Guidance - South and Central Somalia; majority clans and minority groups March 2015 refers to the MOJ guidance. Although there is reference to discrimination and violence the references are to significant problems outside Mogadishu, not within Mogadishu.
26. I was not directed to any particular passages in the US State Department Report on Somalia 2015 or the Amnesty report of February 2016 other than in general that the reports supported the submissions that this appellant would be unlikely to be able to access employment and would thus become an IDP. In any event see Said [31].
27. The evidence relied upon does not indicate that the guidance in MOJ is no longer sustainable but rather emphasises the importance of ensuring that full and proper consideration is given to the question of whether there is a real risk that there is no real prospect of accessing a livelihood.
28. This appellant has work skills and work discipline; he has an acknowledged positive attitude to work. In addition to his footballing coaching skills and academic achievements he has acquired constructions skills. His Somali language was held by the First-tier Tribunal judge to be rusty - although this contradicts the appellant's own claim as recorded in the OASys report that he speaks Somali. Nevertheless, I have reached my decision on the basis that they are, as found by the First-tier Tribunal "rusty". There was no evidence offered or identified by the appellant that 'rusty' Somali would be a hindrance to accessing employment. The evidence in MOJ was that those returning to Mogadishu from abroad were at an advantage because they were more highly educated and had work skills. It is fanciful to conclude that his language would not improve in a city where he is amongst individuals speaking Somali as well as English or other languages.
29. Although the appellant would have had an advantage in obtaining employment if he had family members in Mogadishu, the lack of family members does not prevent him accessing employment. The appellant has acquired some construction skills and the economic boom described in MOJ (and supported by the recent UNHCR report which refers to increasing numbers returning) provides further support to a conclusion that this appellant would be able to access employment. Mr Walker referred to the appellant's acknowledged coaching skills and what he said would be increasing leisure activity demands. There was no evidence for this but this appellant has plainly taken advantage in the UK of his skills and it is not difficult to conclude that even if he does not find employment in that field, he would utilise those skills within the community thus increasing his personal profile.
30. Ms Short refers to his minority clan membership resulting in a lack of 'community'. This cannot be the case. Although his clan membership will not provide the same benefits as would be the case if he were of a majority clan, there would be access to individuals and groups that would enable him to obtain at least some access to potential employment. The evidence does not indicate that minority clan membership is of little or no value.
31. The combination of this appellant's education, work and employment skills in the UK; his Somali language ability and his positive attitude all seen in the context of the increasing level of returns to Mogadishu, the continuing economic development in Mogadishu and the lack of deterioration generally in the security situation lead to a conclusion that this appellant is not at real risk of being unable to access a livelihood.
32. Ms Short referred to the lack of available accommodation and thus the increased possibility of the appellant having no alternative but to move to an IDP camp. Although previous accommodation problems in the UK led, the appellant says, to his criminal activity, there was no evidence that individuals returning to Mogadishu with no family support but with an ability to access a livelihood were, in effect, forced into IDP camps. Paragraph 421 of MOJ in considering
"?.The "economic boom" has generated more opportunity for employment and, as always, self-employment in the form of small-scale trading is an established Somali route to a livelihood. For many returnees, remittances will be important?.."
emphasises the importance of economic opportunity and although in this appellant's case there was a finding that there would be no access to remittances from his family in the UK, this appellant is not at real risk of being unable to access a livelihood; the possibility of having to live in an IDP camp is remote.
33. Taking all these matters into account I am satisfied that the appellant will not be at real risk of being persecuted or sustaining serious harm.
34. His appeal on international protection grounds is dismissed.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I re-make the decision in the appeal by dismissing it

Upper Tribunal Judge Coker Date 6th December 2016