Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00053/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 March 2017
On 11 April 2017

Before

UPPER TRIBUNAL JUDGE blum

Between

AHMED HASSAN SAID
(anonymity direction not MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Harding, Counsel, instructed by Fadiga & Co Solicitors
For the Respondent: Mr Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is a remade decision following a successful appeal by the Secretary of State for the Home Department (Respondent) against Judge of the First-tier Tribunal Dineen’s (FtJ) promulgated decision of 15 August 2016 allowing the Appellant’s appeal against the Respondent’s decision of 24 July 2015 refusing his protection and human rights claim and making a deportation order against him. Also of relevance is a supplementary decision dated 10 August 2015 issuing a certificate under section 72 of the Nationality, Immigration and Asylum Act 2002 on the basis that the Appellant constituted a danger to the community, and a decision to exclude him from an entitlement to Humanitarian Protection (HP) pursuant to paragraph 339D(iii) of the immigration rules.
Background
2. The Appellant is a national of Somalia, date of birth 02 March 1989. He lived in Merca, a coastal city in southern Somalia, until the age of 5. Thereafter he lived in Kismayo (another southern Somali coastal city) and then in Kenya. He entered the UK on 28 April 2001 as a minor dependent of his mother. The Appellant’s mother and her children, including him, were recognised as refugees on 23 May 2006 and were granted indefinite leave to remain (ILR) on 22 July 2011.
3. On 17 September 2012 the Appellant received a six-year sentence of imprisonment in respect to an offence under Section 18 of the Offences Against the Person Act. It is clear from the Sentencing Judge’s remarks that this was a savage attack. The Appellant, who had argued with his victim, punched him, pulled his hood over his face, pushed him into a kitchen, grabbed a knife and stabbed him twice in the back. The sentencing judge did not consider that the Appellant was dangerous within the ‘statutory definition’ which would have required a very high degree of evidence in order to impose an indefinite or extended sentence. It is for this reason that no pre-sentence report was sought.
4. On 13 March 2015 the Respondent sent the Appellant a ‘Notification of Intention to Cease Refugee Status’ in reliance on paragraph 339A of the immigration rules because he was said to be no longer at risk of persecution in Somalia. On 7 July 2015 the Respondent decided on cessation of the Appellant’s refugee status.
5. In his decision the FtJ found the Appellant had rebutted the presumption under s.72 of the Nationality, Immigration and Asylum Act 2002 that he constituted a danger to the community but rejected the Appellant’s contention that the Respondent was not entitled to cessate his refugee status. The FtJ consequently dismissed the appeal under the Refugee Convention. The Appellant has not sought to challenge this decision.
6. The FtJ concluded however that the Appellant was entitled to Humanitarian Protection (HP) on the basis that he had not previously lived in Mogadishu, that he did not have a social support network and had no family remaining in Somalia, that he had no contact with any clan members since he left the country aged about 5 years old, and that he did not have access to financial resources. The FtJ found that the Appellant was at risk of having to live in makeshift accommodation within an IDP camp where there was a real possibility that he would experience conditions falling below acceptable humanitarian standards.
7. In an ‘error of law’ decision promulgated on 19 December 2016 I explained how the FtJ materially erred in law by failing to inquire or consider whether the Appellant could receive financial support from his 7 adult siblings. There had been no satisfactory assessment of their personal circumstances, their employment status, their financial circumstances and their willingness to provide support to the Appellant. The possibility of such financial support was a material consideration in determining whether the Appellant would be at real risk of finding himself in an IDP camp in Somalia, thereby exposing him to a real risk of a breach of Humanitarian Protection or Article 3 ill treatment.
8. I also found that the FtJ failed to deal with the Respondent’s decision to exclude the Appellant from Humanitarian Protection under paragraph 339D of the immigration rules, that it was insufficiently clear from the FtJ’s reasoning whether he attached undue weight to the Sentencing judge’s remarks relating to the high threshold in the Criminal Justice Act 2003 (that would have led to an indefinite or extended sentence) in determining whether the Appellant posed a danger to the community for the purposes of the s.72 certificate, and that the FtJ failed to satisfactory indicate that he took account of the seriousness of the Appellant’s offence in concluding that the s.72 certificate was rebutted.
9. I additionally indicated my concern as to whether there was a right of appeal under s.82 of the Nationality, Immigration and Asylum Act 2002 against a refusal of a protection claim given that the term “protection claim” related to a claim made by a person that their removal would breach the United Kingdom’s obligations in relation to persons “eligible for a grant of Humanitarian Protection” in circumstances where the Respondent decided that the Appellant was excluded from a grant of Humanitarian Protection.
10. I decided to remake the decision myself but I adjourned the hearing to enable further evidence to be adduced by the parties and for written submissions to be provided. The new hearing was listed for 19 January 2017 but this hearing had to be adjourned because material evidence relating to the personal and financial circumstances of the Appellant’s siblings had not been provided. The Appellant informed me, through his counsel at the time (not Mr Harding), that his representatives had not sought to establish contact with him until Monday 16 January 2017. I directed the Appellant’s representatives to file representations as to why they should not be subject to a wasted costs order in light of this assertion. I subsequently received a detailed statement from the Appellant’s legal representatives describing the numerous attempts they made to contact both the Appellant and his mother and the failure by the Appellant to attend an appointment that had been arranged shortly after communication was re-established. The solicitor’s statement indicated that the Appellant had given misleading information to Counsel representing him on 19 January 2017. The letter described how, at a conference, the Appellant apologised for misleading his barrister and for not telling the truth. In the circumstances I am satisfied that it is not appropriate to issue a wasted costs order.
The evidence given to the First-tier Tribunal decision
11. The First-tier Tribunal heard oral evidence from both the Appellant and his mother. The Appellant lived with his mother in rented council property. She was a member of the Geledi clan and his father, who died around 2008 in Somalia, was a member of the Reer Hamar clan. The Appellant’s mother had a part-time job for 2 to 3 hours a day as a carer. The Appellant was using cannabis at the time of his offence but he had submitted to voluntary drug tests whilst serving his sentence and was no longer a drug user. He had attained the status of enhanced prisoner although he had one adjudication regarding the unauthorised use of a mobile phone. The Appellant received some training as a bricklayer and a decorator but he never had paid work in the UK. He had however done some unpaid work as a mechanic. The Appellant spoke good English and could speak what his mother described as ‘broken Somali’.
12. The Appellant maintained that he had no friends or family in Somalia and that his mother and all his siblings were in the UK. His father’s relatives were in America and, other than providing some money to help the family leave Somalia, there had been no contact with these people since the death of the Appellant’s father. The Appellant’s mother said that she raised 8 children in the UK and that all of them had now graduated (in light of the evidence given before the Upper Tribunal this last assertion was not accurate as the Appellant’s two youngest brothers are still studying). She gave evidence to the effect that the Appellant’s siblings knew that he was incarcerated. “All of them had a lot to do today and couldn’t take the time to come.” One of the Appellant’s siblings worked in security, one lived in Manchester and another in Dubai.
Evidence before the Upper Tribunal
13. In addition to the bundle of documents that was before the First-tier Tribunal the Appellant provided a supplementary bundle of documents that included, inter alia, a further statement from the Appellant’s mother, NatWest bank account statements relating to the Appellant’s mother, a letter dated 27 October 2016, issued by a senior NHS physiotherapist, relating to the Appellant’s mother, several appointment letters relating to medical examinations of the Appellant’s mother, a National probation service letter dated 20 January 2017 confirming that the Appellant posed a low-risk of harm to the general public and that the risk of serious harm posed to known adults had been reduced from high to medium, several brief letters from some of the Appellant’s siblings stating that they were unable to financially support the Appellant, and some limited supporting documentation relating to some of the siblings (such as education documents, tenancy agreements and bank account statements).
14. I was additionally provided with a further bundle of documents consisting of authorities and short background reports and articles relating to both the current security situation in Somalia and concerns relating to a drought in the country. Mr Harding provided a useful skeleton argument. It was confirmed at the outset of the hearing by Mr Hardy that there was no challenge to the FtJ’s decision in respect of the asylum claim and that the Appellant was not advancing an appeal on the basis of article 8 ECHR. It was confirmed that the Appellant was contending that he was entitled to Humanitarian Protection, alternatively, that his removal would result in a breach of article 3.
15. Having adopted his statement dated 14 October 2015 the Appellant was examined in chief. He lived with his mother and was bailed to that address. All of his siblings except his sister Muna, who was in Dubai, lived in the UK. The Appellant had two older sisters, Maryam (around 33 or 34) who lived in Manchester with her husband, and Muna who was around 30 years old. His older brother Said was around 29 years old and lived with the Appellant’s mother. The Appellant then had a younger brother, Abshir, who was around 26 years old. The Appellant had fallen out with Abshir. Abshir lived in London but the Appellant was not sure of the location. The Appellant had a younger sister, Anisa, who was 23 years old and who also lived with the Appellant’s mother. Hasan was the next brother and he was 22 years old and also lived with the Appellant’s mother. The youngest sibling was the Appellant’s brother Mohammed who attended the University of Hertfordshire and lived on campus.
16. The Appellant did not know of any other relatives living elsewhere in the world although he believed he had a paternal uncle living in Canada. The Appellant had not spoken to this uncle and did not personally know him. When asked generally whether his siblings would be able to financially support him to enable him to live in Mogadishu the Appellant explained that it was a lot to ask of them and that they were trying to become settled themselves. His criminal conviction had caused a division within the family and this was why he had only provided evidence from some of his siblings. Some of his siblings may be able to provide him with money as a “one off” but the Appellant did not feel that he could keep on asking them for money when they were themselves trying to find some stability. When asked whether any of his siblings would not help him the Appellant only identified his brother Abshir. The Appellant indicated that if his other siblings had the money they would help him, but he felt it was not something he could “put on their shoulders.”
17. The Appellants did not believe that he would be able to find employment in Mogadishu because he would be returning as a deportee without qualifications and this would make things more difficult. When asked how anyone would know this the Appellant said it was because he had his own beliefs and that he would not lie when talking about issues such as faith and what was morally right. The Appellant confirmed that he had undertaken a one year apprenticeship in auto mechanics. He only knew the basics and could not fix cars. The Appellant had undertaken remunerated agency work when he came out of detention in June 2015. He worked for the Staffline Group which provided him with jobs in warehouses. He worked around 20 hours a week or so but this work was not consistent. He worked on average 2 or so days a week and this continued to the present. The warehouse work covered a variety of responsibilities including hygiene and dispatch. The Appellant also had a UK driving licence and had, for a very short period, been a self-employed delivery driver. He had been unable to afford the cost of petrol however and returned the van and cancelled the contract. The Appellant did not believe it was possible to do similar things in Mogadishu because he didn’t believe there would be many opportunities and obtaining employment would very much depend on one’s contacts.
18. In cross-examination the Appellant explained that he would not lie about being a deportee. He accepted that he was partly concerned about being perceived as a Westerner. When asked whether his mother was currently working the Appellant answered in the affirmative. She was a carer but had recently been diagnosed with an illness that may soon prevent her from working. When it was put to the Appellant that he had lied to his barrister on 19 January 2017 the Appellant apologised but claimed this was also partly his mother’s fault.
19. The Appellant last saw Maryam when he was released from the detention centre. She did not work but her husband worked. The Appellant was unable to comment when questioned about some transactions in his brother-in-law’s account.
20. I asked the Appellant a number of clarificatory questions relating to his circumstances and those of his siblings. The Appellant confirmed that he conversed with his mother in the Somali language. They both spoke in Somali although the Appellant believed that his Somali might not be to a good enough standard. The Appellant confirmed that he spoke Somali when he 1st entered the United Kingdom as an 11-year-old. The Appellant was not sure what disability afflicted his oldest sister Maryam. The Appellant confirmed that Muna lived in Dubai. She was trying to get a job there. She had studied architecture/design. Muna had visited the Appellant in early 2015 and last visited him about a year ago. She had more or less fully moved to Dubai around 2014/15. When asked why there was no documentary evidence of any sort from Muna the Appellant explained that he had been concentrating on his family in the United Kingdom. When asked why his mother had not contacted Muna and asked for evidence the Appellant stated that his mother may have an answer. Said had just finished a course to become a security guard but was not currently employed. I was referred to Universal Credit documents at page 51 of the Appellant’s bundle which suggested that Said was in receipt of £317 a month. The Appellant believed that his mother received housing benefit but that the amount depended upon what she earned. When asked whether there was any reason why Said was not present to give evidence the Appellant vaguely referred to a requirement Said had to fulfil as a jobseeker.
21. Anisa was working in a call centre booking cabs for children with learning difficulties. This was a full-time job and she was living with her mother. The Appellant described Anisa as having a good heart and someone who would not abandon him in times of need. Although he stated that he had asked Anisa to submit employment and bank account statements the Appellant did not know why none had been provided. Anisa was not in attendance at the hearing because she could not take time off work. Hassan was a full-time student at the University of Brighton and relied on grants/loans. Mohammed was finishing his studies at the University of Hertfordshire and was financing his studies through loans.
22. The Appellant undertook a Level 1 Brick Laying Training Course at Maidstone prison. He passed this course which he described as a “1st step” course. The course lasted between 8 months and a year and the Appellant studied/worked 3 times a week for 3 to 4 hours a day. The Appellant had also started a decorated course but was unable to finish as he was transferred to a detention centre.
23. The Appellant’s mother adopted her statements. In examination in chief she explained that some of her children were at university and others had to work. That was why there was no one else present at the hearing. The Appellant’s mother stated that she was no working and stopped working in February 2017. She previously worked for a company that took disabled children to and from school. She had been a part-time worker and worked around 1 ½ hours in the morning and between 2 and 3 hours in the afternoon, 5 days a week. The Appellant’s mother then stated that she received an injury and was on sick leave and had commenced sick leave on 14 February 2017. She did not receive any pay from her company and was on Universal Credit. She confirmed, when asked whether she was self-employed or an employee, that she was an employee. When asked whether her other children would be able to financially assist the Appellant she stated that her other children had to repay loans from university and that although they might be able to make a “one-off” payment it would be difficult for the Appellant to rely on his siblings in the longer term. When asked why there was no documentary evidence from Muna the Appellant’s mother stated that the Appellant and Muna were “not on good terms”. Muna was married and living in Dubai and didn’t want to contact the Appellant. Her husband had permanent residence in Dubai. When asked why the Appellant himself couldn’t work in Mogadishu to support himself his mother said that he knew nothing of life in Somalia and that in order to work there one must have contacts. The Appellant was also a member of a minority clan and there were no relatives to support him in Somalia. The family had never lived in Mogadishu and the only property they owned, in Merca, had been destroyed during the Civil War.
24. Since her husband passed away in July 2008 the Appellant’s mother had not been in contact with her brother-in-law, Mohammed, who lived in America and who financed the families journey to the UK. Mohammed was aware that the Appellant had been imprisoned because his aunt, who lived in Camden Town, had informed him but he never sought to contact the Appellant’s mother. Mohammed no longer spoke to his aunt.
25. In cross-examination the Appellant’s mother confirmed that she was not in contact with those described in the First-tier Tribunal hearing as “distant relatives”. These “distant relatives” were people with whom she grew up in Somalia such as friends and neighbours. The Appellant worked a few hours in a bakery and had previously worked in warehouses. Anisa worked in a call centre office. Anisa provided some financial support to the Appellant’s mother even though she lived with her friend most of the time. When asked which of her children were not on good terms with the Appellant his mother identified Abshir and Muna.
26. In answer to some clarificatory questions asked by me the Appellant’s mother said that he had been working in a bakery for months. At the bakery he organised and arranged bread and did packing. He started at 6 AM and finished at 2 PM but did not work every day. Muna was said to be dependent on her husband who was an employee in a money transaction company exporting goods to Africa. Muna qualified from university in the areas of architecture and design. When I informed the Appellant’s mother that he did not mention Muna as a sibling who refused to give him money his mother said that the Appellant was not counting on her because she was far away. The Appellant’s mother had asked Muna whether she was able to financially support the Appellant and Muna said she was not. I then asked the Appellant’s mother whether she informed the Appellant that Muna had refused to help him and she said that the Appellant was aware of this.
27. The Appellant was re-called as a witness and described the bakery as being alongside the warehouses in which he worked. The bakery was an industrial bakery and the work he did in it was under the auspices of his agency.
Findings of fact and reasons
28. The Appellant must prove, albeit to the lower standard of proof (a real risk) that his deportation to Somalia would breach Article 3. It is also for the Appellant to prove that he is entitled to Humanitarian Protection, although he only has to do so according to the same lower standard of proof.
29. I will first deal briefly with the issue I raised in my error of law decision as to whether the Appellant enjoys a right of appeal in respect of decision to refuse him Humanitarian Protection. Under s.82(1)(a) of the 2002 Act the Appellant has a right of appeal against a decision to refuse a protection claim. A protection claim is, inter alia, a claim made by a person that his removal would breach the United Kingdom’s obligations in relation to “persons eligible for a grant of Humanitarian Protection” (s.82(2)(a)(ii) of the 2002 Act). A person may appeal on grounds that, inter alia, their removal would breach the United Kingdom’s obligations in relation to persons eligible for a grant of Humanitarian Protection (s.84(1)(b)). By a decision dated 10 August 2015 the Respondent certified the asylum aspect of the claim pursuant to s.72 of the 2002 (which provides a rebuttable presumption that a person has committed a particularly serious crime and poses a danger to the community) and decided that the Appellant was excluded from Humanitarian Protection with sole reference to paragraph 339D(iii). The issue is whether the Appellant, following the decision to exclude him from Humanitarian Protection, remains someone “eligible for a grant of Humanitarian Protection” such as to accord him a right of appeal in respect of the refusal of a protection claim.
30. When faced with a certificate under section 72 the tribunal has to determine for itself whether an individual had in fact been convicted of a particularly serious crime and that he constitutes a danger to the community. If the Tribunal, on an assessment of all the available evidence, concludes that the requisite elements are absent then the certificate is discharged. I accept Mr Harding’s written submissions that Rule 339D(iii) and s.72 must be considered alongside each other. Under paragraph 339D(iii) a person will be excluded from Humanitarian Protection if there are serious reasons for considering that he constitutes a danger to the community or to the security of the United Kingdom. The Respondent has elected to rely only on this particular provision and not on paragraph 339D(i) which excludes an individual from Humanitarian Protection where there are serious reasons for considering that the individual has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes. Given the very harsh consequences that could flow from an individual being exposed to conditions sufficient to entitle them to a grant of Humanitarian Protection, and in light of the fact that this involves issues of fundamental human rights, I am satisfied that sections 82 and 84 of the 2002 Act must be read, together with paragraph 339D(iii), as enabling a Tribunal, in the context of a statutory appeal, to consider for itself whether the requirements of that paragraph are met.
31. The Respondent has elected to exclude the Appellant from Humanitarian Protection on the basis of his conviction for wounding with intent to do grievous bodily harm on 17 September 2012, for which the Appellant received a sentence of 6 years imprisonment. The criminal offence was clearly of a very serious nature. I therefore attach significant weight to the ferocity of that offence and the very serious injury inflicted upon the victim. The serious nature of this violent offence does on its face suggest that the Appellant constitutes a danger to the community.
32. The nature of paragraph 339D(iii) is however forward-looking and I have to determine whether, at the date of this hearing, the Appellant continues to constitute a danger to the community. There are a number of factors relevant to this assessment. I first note that the Appellant had been a person of good character prior to the commission of the offence. I additionally note that since his release from detention the Appellant has not committed any further offences. I have considered an OASys Assessment dated 14 December 2016. The report confirms that the Appellant had no previous convictions and that there had not been a pattern of any offending prior to his conviction. The report indicates that since his release the Appellant has been making a conscious effort to rebuild a pro-social lifestyle. I note that he completed a CARATs course on Drugs Awareness and that he indicated a willingness to engage in the Assertiveness/Decision Making and Victim Awareness courses run by the prison, although he was unable to actually participate in the courses as he did not meet the criteria and then as a result of his immigration issues. The Appellant was described as posing a medium risk to the victim of his attack and that the risk was likely to be greatest at the time when the Appellant took a dislike/mistrust of an associate, associated with pro-criminal peers, resumed his old lifestyle of involvement with drugs and no legitimate employment, and was without family support and influence. The Appellant was however identified as being of low risk of causing harm to the general public and that he was at low risk of reoffending. A National Probation Service letter dated 20 January 2017 confirmed that the Appellant posed a low-risk of harm to the general public and that the risk of serious harm posed to known adults had been reduced from high to medium. Having carefully considered the Appellant circumstances, his written and oral evidence, and the conclusions of the OASys report and Probation letter, I am satisfied that the Appellant has made an effort to change his lifestyle and that he does not constitute a danger to the community or the security of the United Kingdom. I am therefore satisfied that the Appellant is not someone who is excluded from humanitarian protection.
33. I will now consider whether the Appellant is entitled to Humanitarian Protection. In MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) (MOJ) a three-member panel of the Upper Tribunal, led by the President of the Upper Tribunal, considered the circumstances in which an individual being returned to Mogadishu may face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms. The Tribunal found that generally a person who is “an ordinary civilian” 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. Such a person would not, in particular, be at real risk simply on account of having lived in the European location for a period of time. The Tribunal found that there had been a reduction in the level of civilian casualties in Mogadishu since 2011 and that the present level of casualties did not establish a sufficient risk to ordinary civilians. A person returning to Mogadishu 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. The significance of clan membership in Mogadishu had changed and clans now provide, potentially, social support mechanisms and could assist with access to livelihoods. Clans performed less of a protection function than previously. The Tribunal found that there were no clan militias in Mogadishu, no clan violence, and no clan-based discriminatory treatment, even for minority clan members.
34. Headnote (ix) of MOJ reads,
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.
35. Headnote (x) and (xi) read, respectively,
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.
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.
36. Headnote (xii) states,
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.
37. In SM & Ors (Somalia) v Secretary of State for the Home Department [2015] EWCA Civ 763 the Court of Appeal refused permission to appeal the decision in MOJ. I must always be aware of any change in the conditions in Somalia, evidenced in further country-specific reports, that may render inapplicable the factual assessment in MOJ. The assessment in MOJ of the circumstances in which an individual may be exposed to a real risk of a breach of Article 3, or to treatment that amounts to a breach of HP, is, nevertheless, the appropriate starting point.
38. It is not in dispute that the Appellant has never lived in Mogadishu. He would therefore be returning to a city with which he is unfamiliar. I accept the account given by the Appellant’s mother in her asylum appeal in 2006 to the effect that she and her family fled their home in Merca in 1991 and relocated for a short period to Kismayo, before fleeing to a refugee camp in Kenny where they remained until 1996. They then moved back to the Kenyan/Somali border where they initially lived in a border town before going to Kismayo where they lived in relative safety until 1999 when they fled back to Kenya. The Appellant indicated that he had no relatives in Somalia and, although stating in the First-tier Tribunal hearing that there were some “distant relatives” in Somalia, the Appellant’s mother clarified before me that these “distant relatives” were people with whom she grew up in Somalia such as friends and neighbours and with whom she was no longer in contact. Both of the Appellant’s parents came from minority clans (his father was Reer Hamar, his mother Geledi) but there is nothing in the evidence before me to undermine the assertion made by the Appellant and his mother that they have no contact with any clan member in Mogadishu. Whilst I cannot entirely discount the possibility that the Appellant may be able to obtain some social support and assistance from fellow clan members that he may encounter in Mogadishu I am satisfied, on the lower standard of proof, that the Appellant is unlikely to be able to call upon any clan associations in Mogadishu given the length of his absence from Somalia and in the absence of any evidence of any continuing links to the country.
39. The Appellant’s general evidence in relation to the financial circumstances of his siblings was vague. He knew little of their circumstances other than to say who was working, who was studying, and who was unemployed. I am not satisfied that any reasonable explanation was offered to explain Said’s absence from the hearing given that he is unemployed. No documentary evidence was adduced in support of the Appellant’s extremely vague assertion that Said was unable to attend because of some requirement he had to fulfil as a jobseeker. Nor is there any documentary evidence that Said is in fact residing with the Appellant’s mother. I have however considered the Universal Credit payments made to him and I am prepared, on the lower standard of proof, to find that he is unemployed and that he is incapable of financially supporting the Appellant. Mr Bramble accepted on behalf of the Respondent that the Appellant would not gain any financial support from his two younger brothers who were studying. Having considered the documentary evidence from the Appellant’s older sister Maryam, who is not working due to a claimed disability (supported to some extend by a PIP Annual Advice document), and who has 5 children and a number of financial commitments, I am satisfied that she is unable to provide the Appellant with any financial support.
40. When asked in cross examination whether the Appellant’s mother was currently working the Appellant answered in the affirmative. The Appellant lives with his mother and one would reasonably expect him to know whether she was currently employed. Although the Appellant indicated that his mother had recently been diagnosed with an illness that may soon prevent her from working he was clearly of the view that his mother was working. This is in marked contrast to the evidence given by the Appellant’s mother who, somewhat confusingly, first stated that she was no longer employed, then stated that she was on sickness leave. When asked whether she was self-employed or an employee the Appellant’s mother confirmed the latter. Although there is brief reference in the mother’s medical history going up to 30 December 2016 to her being unable to work as a carer she has not provided any evidence from her employer that she is either no longer employed or that she is on sick leave. The Appellant’s mother also said in her oral evidence that she stopped working on 14 February 2017. As the Appellant and his mother are living in the same property I would have expected the Appellant to be aware that his mother was either no longer working or had been on sick leave for over a month. Nor has any evidence been provided in support of the mother’s assertion that she is now receiving universal credit. I am not consequently satisfied that the Appellant’s mother is no longer working, although I do accept based on the NHS physiotherapist report dated 27 October 2016, that she has a history of chronic low back pain and that this has worsened.
41. In his oral evidence the Appellant stated that Muna, his second oldest sister, was trying to get a job in Dubai and had more or less fully moved to Dubai around 2014/15. He did not mention that she was married. Muna had visited the Appellant in early 2015 and last visited him about a year ago. This suggests that Muna remained on good terms with the Appellant since his incarceration. When asked why there was no documentary evidence of any sort from Muna the Appellant explained that he had been concentrating on his family in the United Kingdom. When asked whether his mother had contacted Muna and asked for evidence of her financial circumstances the Appellant stated that his mother may have an answer. This account contradicts that given by the Appellant’s mother. She explicitly stated that Muna refused to financially support the Appellant and that he was aware of this. If the Appellant was aware of this he would have said so when asked about the absence of any evidence from Muna.
42. There was a significant inconsistency between the Appellant’s evidence and that of his mother in respect of his relationship with Muna. When asked in examination in chief which of his siblings would not help him the Appellant only identified his brother Abshir. The question asked of the Appellant was straightforward and clear. If Muna had refused to financially support the Appellant because they had a falling out I would have reasonably expected him to have mentioned this at this point.
43. In her evidence the Appellant’s mother stated that he was not on good terms with Muna and Abshir and that Muna didn’t want to contact the Appellant. The Appellant however said nothing of the sort and referred to occasions when Muna previously visited him. There is a stark contrast between this aspect of the Appellant’s evidence and that of his mother. I am not satisfied, even on the lower standard of proof, that the true picture of the Appellant’s relationship with Muna has been described by the Appellant’s mother. Nor am I satisfied, on the basis of the divergent descriptions of the Appellant’s relationship with Muna, and the failure to produce her financial documents, that she would be either unwilling or unable to financially assist the Appellant if deported to Mogadishu.
44. The evidence relating to Anisa’s circumstances was extremely limited. All that had been provided was a copy of her passport and an undated and very short manuscript letter in which she confirmed that she was currently working to help her family and herself but that her work did not allow her to extend financial support to both the Appellant and her family. This brief letter asserts that Anisa is working, a claim confirmed by both the Appellant and his mother. I am therefore satisfied that Anisa is employed at a call centre. Although there is no letter from her employer stating that she has not been granted permission to attend the hearing I am prepared to accept that her employment is the reason why she has not given oral evidence. There is nevertheless a surprising and, in my judgement, inexplicable absence of evidence relating to her employment, her income and her financial circumstances. There is no requirement for corroborative documentary evidence in this jurisdiction but I am entitled to take into account the absence of documentation that one would reasonably expect to be readily accessible and available. There is no employment contract, there are no wage slips and no tax documents relating to Anisa’s employment. No bank account details have been provided to confirm her income or any savings that she may hold, and there are no details of her outgoings. No reasonable explanation has been proffered for the absence of this obviously significant evidence. In these circumstances, and applying the lower standard of proof, I am not satisfied that the full picture of Anisa’s employment has been disclosed. I additionally note a small inconsistency in the Appellant’s evidence and that of his mother relating to where Anisa lives. The Appellant stated in straightforward and clear terms that Anisa lived with their mother. He made no mention of her living partly anywhere else. In her evidence the Appellant’s mother stated that Anisa supported her even though she lived with her friend most of the time. If Anisa did live most of the time with a friend I would have reasonably expected the Appellant to know this. This inconsistency further renders unreliable the assertions made in respect of Anisa’s circumstances.
45. Given the unreliable evidence in respect of the financial circumstances of both Muna and Anisa I am not satisfied there are no family members who are unable or unwilling to provide the Appellant with financial support in the form of remittances to Somalia.
46. The Appellant confirmed in examination in chief that he had undertaken a one year apprenticeship in auto mechanics. I note from the OASys report that, at 16 years of age, the Appellant attended a Motor Vehicle Mechanical Course for one year at Croydon College. It was not suggested to the Appellant or by him that he had forgotten what he had learnt during his auto mechanic course. I additionally note from the OASys report that, from the age of 18, the Appellant worked for a local garage as an apprentice for 2 years on a voluntary basis to develop experience working as a mechanic. Although he stated that he only knew the basics, and could not yet fix cars, I find that the knowledge and skills obtained by the Appellant during his auto mechanic apprenticeship/course, albeit at a low level, is likely to assist him in obtaining employment in Mogadishu.
47. The Appellant successfully completed a Level 1 bricklaying course. This course lasted between 8 months and a year and the Appellant studied/worked 3 days a week for 3 to 4 hours each day. This course, although at Level 1, appears in my judgement to have been of relative intensity (giving him a minimum of 9 hours training a week for at least 8 months) and would have provided the Appellant with practical and employable skills.
48. The OASys report refers to the Appellant as having studied IT for a year and that he received a certificate in relation to this course. The bundle of documents that was placed before the First-tier Tribunal contains a notification of performance from EDEXCEL showing that the Appellant attained EDEXCEL Level 2 BTEC First Diploma. I find that the certificate, and the knowledge and skills attained by the Appellant in achieving the certificate, will assist him in obtaining employment in Mogadishu, especially given the economic boom in the city.
49. Since June 2015 the Appellant has undertaken employment agency work, primarily in warehouses and in industrial bakeries associated with those warehouses. The Appellant’s work in this regard was not consistent but, on average, he worked around 2 days a week or 20 hours a week. The Appellant’s mother stated that he worked in a bakery and had done so for some months and, although he did not work every day, when he did work he started at 6 AM and finished at 2 PM. I accept the Appellant’s evidence, obtained after he was recalled by Mr Harding, that the bakery in which he worked was an industrial bakery associated with the warehouses in which he worked. I additionally note that the OASys report referred to the Appellant as having undertaken shift work at the Hovis Bakery in Mitcham Junction for approximately one year. When employed in the warehouses the Appellant undertook a range of work depending on what was needed. This included work relating to the dispatch aspect of the businesses and hygiene. When working in the industrial bakery the Appellant would organise, arrange and pack bread. The Appellant would undoubtedly be able to utilise his employment experience in the UK and the general skills that he obtained during this employment in seeking employment in Mogadishu.
50. The Appellant spoke Somali when he arrived in the United Kingdom as an 11-year-old. This was the language that was spoken in his home when he lived in Somalia and then the UK. It is the language of his formative years. In his oral evidence the Appellant accepted that he spoke to his mother in Somali and that she answered in Somali. Although the Appellant may now speak with an English accent, and although he may occasionally have difficulty with a word as indicated in his oral evidence, I am satisfied that he is sufficiently proficient in Somali to enable him to effectively communicate if returned to Mogadishu and to enable him to undertake employment. The fact that the Appellant is fluent in English, and that he has a driving licence, are further factors that may go in his favour in obtaining employment.
51. Having regard to the Appellant’s proficiency in Somali, the fact that he is a young and healthy man, the various courses that he has undertaken, his employment and his work experience as described above, and set against the context as described in MOJ of the economic boom in Mogadishu, I am satisfied, to the lower standard of proof, that the Appellant does have a good prospect of securing access to a livelihood either through employment or self-employment. Although not determinative this is a relevant factor in assessing whether he is someone who would be exposed to a real risk of having to live in an IDP where conditions will fall below acceptable humanitarian standards.
52. The new bundle of background material provided for the Upper Tribunal hearing contained a number of news reports describing militant attacks on hotels and markets in Mogadishu. Despite the seriousness of these individual events nothing in the background materials indicated that these events were prevalent or that the security situation in Mogadishu had significantly deteriorated since MOJ.
53. The bundle of documents also contained a number of articles and reports published by, amongst others, the United Nations New Centre, the International Organisation for Migration, Save The Children, the UNHCR and the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), describing severe drought conditions that have affected the country and expressing fears of a possible famine. The majority of these reports, which are of recent vintage, indicate that a famine may strike parts of the country unless urgent humanitarian deliveries are made, in particular to regions in the north-east, central Somalia, south-western Somaliland. None of the reports identify Mogadishu as being immediately affected by a possible famine, although the United Nations New Centre does report that the price of water and locally produced food has risen dramatically and that thousands of people are on the move in search of food and water, and the OCHA report notes that in Mogadishu the prices of coarse grains increased by up to 35% in January and February 2017. The reports state that signs of malnutrition are particularly strong amongst children. Whilst not seeking to underestimate the serious impact that a drought may bring to the inhabitants of Somalia these reports, considered individually and holistically, do not indicate that those resident in Mogadishu are likely to be affected by the drought and any famine that may ensue other than by reference to increased water and grain prices and possibly some greater competition for work. Whilst the Appellant is not familiar with the work culture in Somalia I have found that he does possess a number of employable skills and has some work experience and that he has not demonstrated that he would not receive remittals from his family, and I note the evidence in MOJ to the effect that returnees were taking jobs at the expense of those who have never been away. Nothing in the recent reports provides any basis for undermining that finding. I am not therefore satisfied that the fears of drought undermined to any significant extent the ability of the Appellant to rely on remittances from his family abroad and to secure access to a livelihood on return through employment. In the circumstances I find, to the lower standard of proof, that there is no real risk that the Appellant will have no alternative but to live in makeshift accommodation within an IDP camp.
54. In Secretary of State for the Home Department v Said [2016] EWCA Civ 442, the Court of Appeal stated, at [31],
I entirely accept that some of the observations made in the course of the discussion of IDP camps may be taken to suggest that if a returning Somali national can show that he is likely to end up having to establish himself in an IDP camp, that would be sufficient to engage the protection of article 3. Yet such a stark proposition of cause and effect would be inconsistent with the article 3 jurisprudence of the Strasbourg Court and binding authority of the domestic courts. In my judgment the position is accurately stated in para 422. That draws a proper distinction between humanitarian protection and article 3 and recognises that the individual circumstances of the person concerned must be considered. An appeal to article 3 which suggests that the person concerned would face impoverished conditions of living on removal to Somalia should, as the Strasbourg Court indicated in Sufi and Elmi at para 292, be viewed by reference to the test in the N case. Impoverished conditions which were the direct result of violent activities may be viewed differently as would cases where the risk suggested is of direct violence itself.
55. Given that I have found that the Appellant will not be exposed to conditions that would breach minimum humanitarian protection levels, and in light of the consideration given by the Court of Appeal above, I find that the Appellant’s removal would not constitute a breach of article 3.

Notice of Decision
The appeals based on article 3 and the Appellant’s entitlement to Humanitarian Protection are both refused.
I make no anonymity order.

07 April 2017
Signed Date

Upper Tribunal Judge Blum