Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00064/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th March 2017
On 30th March 2017

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

E A A
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Khan, instructed by Thompson & Co Solicitors
For the Respondent: Mr S Staunton, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Somalia born in 1979. He appeals against the decision of First-tier Tribunal Judge Trevaskis dismissing his appeal against deportation on the grounds that there would no breach of the Refugee Convention or the Human Rights Convention.

2. Permission to appeal was granted by Upper Tribunal Judge Macleman on the following grounds: “At paragraph 60(ix) the judge said that the appellant ‘has not shown that he does not have available remittances from abroad’. That is correct as far as it goes but the grounds show it to be arguable that there was no evidential basis for the findings at paragraph 60(xi) that the appellant ‘will be in receipt of remittances from abroad’, and at paragraph 60(xii) that he will have ‘access to remittances’. There is a debate to be heard over whether the conclusion that the appellant could work and support himself in Mogadishu is based upon adequate reasons. If that conclusion is not sustainable for the reasons given by the judge, the case appears to be one the Upper Tribunal is likely to be able to deal with in one hearing by substituting its own decision following submissions.”

3. The First-tier Tribunal Judge made the following findings at paragraph 60(ix):

(a) The circumstances of the appellant in Mogadishu before departure were that he was able to access support and to finance his escape.

(b) He was absent from Mogadishu since 2005.

(c) He has no family or clan associations to call upon in Mogadishu.

(d) He has no access to financial resources in Mogadishu.

(e) He has reasonable prospects of securing a livelihood, either by employment or self-employment, based upon his past working experience in the UK and Mogadishu.

(f) He has not shown that he does not have available remittances from abroad, from his family members in Kenya, Canada or the USA.

4. At paragraph 60(x) the judge found: “the appellant has not shown why he would be unable 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.”

5. At paragraph 60(xi) the judge concluded: “although the appellant has no clan or family support in Mogadishu, I am not satisfied that he does not have such support available to him from elsewhere in Somalia; I find that he will be in receipt of remittances from abroad, and that he will have a real prospect of securing access to a livelihood on return, and therefore he will not face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms. This is because the appellant has not only shown his ability to find work and support himself in Mogadishu, but also has adapted to life in the United Kingdom, albeit resorting to criminal conduct.”

6. At paragraph 60(xii) the judge stated: “I find that the appellant has former links to Mogadishu and therefore with access to remittances and the ability to re-establish himself, he is not at real risk of having to live within an IDP camp.”

Submissions

7. Mr Khan submitted that the judge’s conclusions at paragraph 60(vii) and paragraph 60(viii) were unclear, although he appeared to accept that this discrepancy was resolved by the judge’s findings at paragraph (xi), namely that the Appellant will return to Mogadishu and will not be able to obtain support from family or clan associations.

8. However, Mr Khan took issue with the judge’s conclusion that the Appellant would have a reasonable prospect of securing a livelihood. Mr Khan submitted that there was no evidential basis for this conclusion. He submitted that the Appellant had said in evidence that he had never worked in Mogadishu except for some occasional jobs. Mr Khan referred me to the interview record at question 22 where the Appellant specifically stated when asked “Did you have a job in Somalia?” – “No”. Question 23 “How did you live then?” – “I used to polish shoes to make money”.

9. Mr Khan submitted that the Appellant had no work experience in the UK. He had only worked for two years for Tesco and I was referred to his evidence at paragraph 22 of the decision. From 2005 to 2007 the Appellant was not working and was homeless and he thereafter started committing crimes. Mr Khan submitted that the judge had not properly considered the Appellant’s work history in Mogadishu or the UK in order to assess whether the Appellant had the required skills to obtain employment on return to Mogadishu. Accordingly, the judge had erred in his finding at paragraph 60(ix).

10. The judge had further made an error in finding that the Appellant would have access to remittances from abroad because the Appellant’s evidence, which is set out at paragraph 24 of the decision, was that the Appellant did not have contact with his siblings. Mr Khan submitted that this evidence was not challenged. Accordingly, the judge’s conclusion that the Appellant could be supported by relatives outside the UK and Somalia was speculative and without evidential foundation. The Appellant did not have recourse to remittances from abroad, he had no relationship with his wife and his evidence that he had lost contact with his siblings was not challenged.

11. Therefore, on a proper application of MOJ, the Appellant would not be able to re-establish himself on return to Mogadishu and he would be at risk of having to live in an IDP camp. This would breach Article 3 and the Appellant’s appeal should have been allowed.

12. Mr Staunton relied on the Rule 24 response at paragraph 3. “The grounds do not address the Respondent’s position stated at paragraph 11, reference to the refusal letter. ‘The appellant is 37 years old, believed to be in good health, he worked in Mogadishu before fleeing from Somalia. It is believed that he has ties to the Somali community in the UK who would be in a position to provide funds to him. Evidence considered in the country guidance decision suggests that he will be in a strong position to find work than other Somalis who have left the country. Also, the submission recorded at paragraph 37 argue ‘the appellant is an ordinary civilian for the purposes of the country guidance, he has shown himself to be resourceful in the United Kingdom and can therefore support himself in Somalia. At paragraph 54, the Judge sets out the head note of MOJ, when considering MOJ the Tribunal is required to consider; circumstances in Mogadishu before departure; access to financial resources; prospects of securing a livelihood; whether that be employment or self-employment; and access to the economic opportunities.”

13. Paragraph 4 of the Rule 24 response states: “Given the position of the respondent and the argument put by the appellant the Judge accepts that the appellant will be returning as an ordinary civilian (60(ii)), he has reasonable prospects of securing a livelihood, either by employment or self-employment, based upon his past working experience in the United Kingdom and Mogadishu, he has not shown that he does not have available remittances from abroad, from his family members in Kenya, Canada or the USA (60(ix)). These findings continue at paragraph 60(x) and 60(xi) that the Appellant has not shown that he would be unable to access the economic opportunities and the appellant will be in receipt of remittances from abroad, and that he will have a real prospect of securing access to a livelihood on return.”

14. Mr Staunton submitted that the Appellant had worked in Somalia and in the UK and he had ties in the UK upon which he could rely. The Appellant had a greater chance of finding employment than those who had not left Somalia. The Appellant had not shown that he did not have support from the Somali community in the UK or his relatives who were living abroad. The judge’s findings were open to him on the evidence before him, in particular his finding that the Appellant had not shown that he does not have available remittances from abroad.

15. Mr Staunton submitted that, even if the judge’s finding that the Appellant did have access to remittances was legally flawed, it was not material to the overall decision because the Appellant had not shown that he could not support himself on return to Somalia. The judge had looked at both issues separately and that was reflected in his conclusion at paragraph 60(xii).

16. In response, Mr Khan submitted that the judge had dealt with the two factors together, not separately, and since there was no categorical rejection of the Appellant’s evidence that he had no contact with his family members this was a crucial piece of evidence which undermined the judge’s findings. There was no presumption that someone with limited work experience would be able to obtain a job in Mogadishu. The Appellant had been unable to sort his life out here in the UK and had resorted to committing crimes. His work experience was eight years ago. He would not be in a position to get preferential treatment with local workers. He had cleaned shoes in the past in Mogadishu and this was casual employment in order to survive. It would therefore not increase his job opportunities on return.

17. Mr Khan submitted that if I found an error of law I should re-decide the appeal on the evidence before me and allow the Appellant’s appeal or if I did not feel that was the case I should remit for a complete rehearing to the First-tier Tribunal. Mr Staunton disagreed and said that if there was an error there were two specific points on which the Upper Tribunal could hear limited evidence and re-decide the appeal at an adjourned hearing.

Discussion and Conclusions

18. There was evidence before the judge that the Appellant had worked in Somalia polishing shoes. There was also evidence given at the hearing that he had worked for Tesco’s and Mr Khan submitted that he had done so for a period of two years. The onus is on the Appellant to show that he would not be able to access the economic opportunities now available in Mogadishu. The judge’s conclusion that he had failed to do so was open to the judge on the evidence before him.

19. The Appellant had worked in Mogadishu and in the UK. Even though his work experience was limited, the Appellant had been able to support himself in Mogadishu and in the UK. Therefore, the judge’s finding that the Appellant would have reasonable prospects of securing a livelihood on return to Mogadishu was one which was open to him on the evidence before him.

20. With respect to the second ground of challenge, the judge’s finding that the Appellant had not shown that he does not have available remittances from family members in Kenya, Canada and the US was open to him on the evidence. The Appellant’s oral evidence was set out at paragraph 24. He had no family in Somalia, but he has sisters in Canada and the US. According to cousins in the UK the Appellant had tried to contact the Red Cross to try to locate them. The burden is on the Appellant to show that relatives outside Somalia or indeed his cousins in the UK would not support him. The judge’s conclusion that the Appellant has failed to do that was one which was open to him.

21. Following these conclusions, the judge states that the Appellant would be in receipt of remittances from abroad. Such a finding was not speculative and without evidential foundation, given the judge’s earlier finding that the Appellant had not been able to produce evidence to show that he would not have such support should he return. Therefore, the judge’s overall conclusion that the Appellant could work and support himself in Mogadishu was one which was open to him on the evidence before him.

22. Accordingly I find that there was no error of law in the judge’s decision promulgated on 6th September 2016 and I dismiss the Appellant’s appeal.

Notice of decision

Appeal dismissed

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

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her 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.

J Frances

Signed Date: 29th March 2017

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

J Frances

Signed Date: 29th March 2017

Upper Tribunal Judge Frances