Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00092/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 October 2016
On 20 December 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

ma
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Toal, Counsel instructed by Birnberg Peirce & Partners
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Somalia born on 27 October 1975. He arrived in the UK on 24 September 1989 accompanied by his family. He and his siblings were granted refugee status on 4 November 1990, followed by indefinite leave to remain on 15 July 1995.
2. The appellant has been convicted of a number of offences, from 1998 to 2013. Mostly, these have involved offences in relation to class A drugs, including supplying. In particular, on 23 December 2010 he was convicted of four counts of supplying class A drugs for which he received a total sentence of four years and six months' imprisonment. On 18 November 2013 he was convicted of offering to supply a class A controlled drug and offering to supply a class B controlled drug, receiving a sentence of 14 months' imprisonment on 13 December 2013.
3. On 1 October 2015 the respondent made a decision to deport the appellant, to cease his refugee status and to refuse a human rights claim. His appeal against those decisions came before First-tier Tribunal Judge Andrew ("the FtJ") on 16 August 2016. She dismissed the appeal in terms of the decision to revoke the appellant's refugee status (although her decision in this respect is not entirely clear), and also in relation to a certificate pursuant to section 72 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") (presumption of particularly serious crime and danger to the community). She further dismissed the appeal with reference to Articles 3 and 8 of the ECHR.
4. The grounds of appeal relate solely to the FtJ's decision in relation to Article 3.
The Grounds and Submissions
5. The appellant claims to be a member of the Gaboye or Midgan minority group. It is argued that the FtJ was wrong to reject the appellant's claim of membership of that group on the basis that there was no other evidence than his to support that contention. It is argued that the FtJ's decision appears to require corroboration of the appellant's evidence in that respect. Reference is made in the grounds to the decision in TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40. There was no unexplained failure on the part of the appellant to produce evidence that was reasonably available. Independent evidence in the form of an expert report would not have assisted given that the Gaboye have no physically distinguishing characteristics which may have enabled an expert to identify the appellant as being a member of that group. In addition, the appellant was not able to call family members in support of this aspect of his claim given the fact that the family no longer support him.
6. It is further argued that the FtJ failed to take into account background evidence in relation to the appellant's minority clan in making her assessment of his credibility. It is contended that regard to such background evidence was of particular importance given the fact that independent verification of his claim to be a member of the Gaboye could not be provided. The appellant's claim included having been bullied, ostracised and called derogatory names at school, all matters which are consistent with the background evidence, the details of which are set out in the grounds.
7. At [11] of the grounds it is contended that the FtJ had failed to take into account the notes of the appellant's representative which showed that the appellant had consistently claimed to be a member of the Gaboye since his initial contact with his representatives in 2013.
8. Furthermore, it is argued that the FtJ had stated at [35] that she had been referred to no country information to the effect that the Midgan are targeted. On the contrary, there was background evidence to that effect.
9. Similarly, the FtJ had failed to take into account relevant country guidance, in the form of the decision in YS and HA (Midgan - not generally at risk) Somalia CG [2005] UKIAT 00088. It is said that that decision assesses the importance of protection/patronage for the Gaboye from the majority and 'noble' clans in Somalia. It is argued that part of the appellant's case before the FtJ was that the evidence that was before the Tribunal in YS and HA supported the appellant's claim to be from the Gaboye, since on his evidence his father previously worked for Siyad Barre, and there was evidence before the Tribunal in YS and HA to the effect that there was an explicit policy of advancing low-status people. The appellant's claim was thus "congruent" with the background evidence.
10. The oral submissions can be summarised as follows. Mr Toal relied on the grounds. I was referred to various parts of the FtJ's decision. I was also referred to various aspects of the background material which it was submitted was before the FtJ, including in terms of the skeleton argument before her.
11. It was submitted that the FtJ needed to assess the appellant's credibility in the context of the background material. In other words, it was not simply the case that there was only the appellant's evidence as to his minority group status. There was background evidence which supported his claim. In terms of his return to Somalia, there needed to be an assessment of his particular circumstances and characteristics.
12. Mr Melvin relied on the 'rule 24' response. It was submitted that there was no evidence before the respondent or the FtJ to support the appellant's claim to be from the Midgan. There was no expert's report or language assessment. Similarly, no member of his family or the Somali community gave evidence in support of his claim. The FtJ was entitled to reject the appellant's bare assertion as to his minority group status.
13. Furthermore, there was no evidence to support the claim that his father previously worked for Siyad Barre and was therefore part of the Barre regime. There was a conflict in the evidence about where the appellant's family was from, in terms of what his mother had said. There was nothing to support the claim that he was born in southern Somalia or that his father was killed as claimed.
14. There is nothing to indicate that in any further appeal any judge would be in any different position from that of the FtJ who heard the appellant's appeal.
15. In reply, Mr Toal submitted that the appellant could not call evidence from his family in the light of the FtJ's conclusion that the family had disassociated themselves from him. There was a witness statement from his cousin who said that he could not help him. Given that the appellant left Somalia at the age of 9, expert linguistic evidence could not assist.
Conclusions
16. At [28]-[35] the FtJ said as follows:
"28. When the Appellant first came to the United Kingdom his mother claimed asylum for herself with the Appellant and his siblings as her dependants.
29. It was then said that the Appellant was born in Hargeisa in 1975. Hargeisa is now part of Somaliland. It was also said that the Appellant lived in Hargeisa until 1988 when his mother fled the town with the Appellant and his siblings.
30. Whilst I accept that the Respondent has not produced the documents showing that the Appellant's mother claims that she fled from Hargeisa it is accepted by the Appellant in his statement that this is what was said. I have also noted that on Travel Document application forms dated December 1997 and 15th February 1999 the Appellant said he was born in Hargeisa. However, the Appellant now says that this was incorrect and that he was born in Shabeela in Southern Somalia and that he would be at real risk if he were to be returned there.
31. Other than the Appellant's assertions I have nothing to show that the Appellant was born in Southern Somalia. There is no credible reason as to why the Appellant's mother should have claimed to be from Hargeisa or why the Appellant should have done so in his applications for a Travel Document. I have nothing before me to show that there was conflict in Somaliland, as the Appellant now claims and this is why his mother made this claim.
32. Further, in his statement which is at page 3 of the supplementary Bundle paragraph 9 the Appellant says that he arrived in the United Kingdom with his father as well as his mother and siblings. However, it is apparent from the Respondent's records that it was his mother who made the asylum claim not his father.
33. The Appellant further claims that at some point his father returned to Somalia because in September or October 1991 he was executed in Mogadishu apparently because he had worked for the Barre regime. Again, other than the Appellant's assertions, I have no evidence of this before me.
34. The Appellant also asserts that his father was a member of the Midgan or Gaboye clan. He claims that if deported to Somalia he will suffer persecution because of this. Once again I have nothing other than the Appellant's assertions to confirm his claims.
35. Even if I am wrong about this I have been referred to no country information has been adduced (sic) to show that the Midgan are targeted in either Somalia or in Somaliland."
17. At [36] the FtJ said that if she was wrong about the place from which the appellant comes, on the basis of MOJ and Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) there had been a fundamental and durable change in the country which can be assumed to remove the basis of the fear of persecution. In the following paragraph the FtJ said that she had taken into account the letter from the UNHCR dated 2 July 2015 (dealing, amongst other things with cessation of refugee status) but that for the reasons she had already given she did not find the appellant's claim that he is a member of the Gaboye to be credible.
18. Nowhere in the FtJ's decision is there any reference to any of the background material in relation to minority clans or the Gaboye in particular, that was before her. The appellant's skeleton argument at [30] identifies various paragraphs of the Home Office's Country Information and Guidance on south and central Somalia: Majority clans and minority groups dated March 2015 ("the CIG"). To summarise, those passages refer to the disadvantages suffered by members of minority groups, and the lack of support network available to them. It refers to minority ethnic groups being marginalised and facing discrimination in Mogadishu, although being unlikely to face persecution on the grounds of ethnicity alone (1.3.8). There is reference to members of such groups returning or relocating to Mogadishu being without support networks and having no real prospect of securing access to a livelihood, they may face unacceptable living conditions.
19. As I pointed out to the parties at the hearing before me, the FtJ's very clear manuscript notes indicate that submissions were made to her in relation to the background material.
20. In the letter from the UNHCR dated 2 July 2015, there is reference to background material in relation to minority groups, including the Midgan. The respondent's decision letter itself makes extensive reference to the situation for minority groups, and specifically in relation to the Midgan.
21. Although the FtJ referred to the UNHCR letter, as Mr Toal submitted, there is no indication from her decision as to what she made of the background information referred to in that letter, and there is no analysis of it.
22. Furthermore, I consider that the FtJ was wrong to state that she had not been referred to any country information to show that the Midgan are targeted in either Somalia or in Somaliland. At [66] of the respondent's decision letter there is reference to a 2014 report which states that the Gaboye, amongst others, often face discrimination and social stigma due to their occupations, and that their situation in northern Somalia where most of them live is considered bad although slightly improving. At [63] there is reference to information from an international NGO working in south and central Somalia to the effect that there are two groups of people who are most vulnerable in Mogadishu. These are either marginalised or exploited and groups such as Midgan, Gaboye, and others, are marginalised in Mogadishu.
23. At 2.5.5 of the CIG, it states that the Midgan/Gaboye, amongst others, are one of the groups of particularly vulnerable minorities. A further report referred to at 2.5.9, in relation to Mogadishu, also identifies the Midgan and Gaboye as being a marginalised group and that the position of minorities is still precarious.
24. The FtJ was referred to the decision in YS and HA, albeit that the appellant's skeleton argument before the FtJ does not refer to it. Although that decision is now rather dated, there was expert evidence before the Tribunal in that appeal, referred to at [42], that during the time of the Barre regime there was an explicit policy of advancing low-status people, in keeping with the socialist ideology of the regime. Certain individuals were raised to important positions in the government. That evidence, as suggested in the grounds before me, is consistent with the appellant's claim.
25. It is true that there is inconsistency in the information given to the respondent by the appellant's mother and by the appellant, as set out in the FtJ's decision at [30] and [31]. In addition, I do not consider that there is any merit in the contention that the FtJ erred in failing to take into account notes from the appellant's representatives showing consistency in his account. Although it is evident from the FtJ's manuscript notes that this was an issue that was put before her and there is a copy of the notes in the appellant's bundle, I do not consider that this could be said to be a matter of significance which is capable of undermining the FtJ's findings on credibility.
26. I accept that it may sometimes, if not often, be the case that a judge is entitled to reject an account which comes only from an appellant and which is unsupported by other evidence. Much depends on the circumstances. As I have indicated, it is the case that here there was some inconsistency in the information provided to the respondent as to the appellant's circumstances. There are arguments either way in terms of the extent to which the appellant could have produced evidence from other sources as to his minority group status, although the FtJ found that his family had disassociated from him and so no evidence could be expected from that source.
27. Nevertheless, these are issues which need to be assessed, and his credibility generally, in the context of a correct appreciation of the background evidence. It is apparent that the FtJ did not assess the appellant's credibility in that context. She was plainly wrong to refer to an absence of evidence about the targeting of the Midgan or Gaboye. There was such evidence before her.
28. It may be that a full analysis of the background evidence may have resulted in the same outcome in the light of the decision in MOJ and Others. However, it is not for me in considering whether the FtJ materially erred in law, to undertake the detailed assessment of the appellant's claim in the context of the background material which should have been undertaken by the FtJ.
29. The appellant is excluded from refugee protection. That is the effect of the s.72 certificate and the revocation of his refugee status, neither of which are matters upon which the FtJ's decision has been challenged. However, at large before the FtJ were issues of humanitarian protection (contrary to what the FtJ said at [26]), and Article 3 of the ECHR. The appellant's personal circumstances and individual characteristics are plainly relevant to those issues in light of the guidance in MOJ and Others. In the light of the conclusions I have come to above about the FtJ's credibility assessment, and failure to have regard to relevant background evidence, these are issues that have yet to be determined. I am satisfied that the FtJ erred in law in her conclusions, and the error of law is such as to require the decision to be set aside.
30. I have considered whether it is appropriate for the appeal to be remitted to the First-tier Tribunal or retained in the Upper Tribunal. I am satisfied that the appropriate course is for the appeal to be remitted, having regard to the nature and extent of the judicial fact-finding required, and taking into account the Senior President's Practice Statement at paragraph 7.2.
31. The appeal is remitted to the First-tier Tribunal for a fresh hearing for consideration of the issues of the appellant's clan status and his circumstances on return to Mogadishu. The question of the appellant's refugee status and the s.72 certificate have been resolved and require no further consideration. Similarly, the Article 8 claim has also been resolved against the appellant and no distinct error of law in her decision in that respect has been contended for. Accordingly, on its own terms no further consideration of Article 8 is required, except to the extent that any conclusions in the appellant's favour in relation to Article 3 necessarily, but probably only technically, reflect on the Article 8 conclusions.
32. Although further fact-finding is required, the findings of fact that can be preserved are easily identifiable. The findings of fact that are to be preserved are those at [38] and [39] of the FtJ's decision, except in relation to the FtJ's findings in relation to the prospects of the appellant obtaining employment on return, and the consequent conclusion in relation to whether he would need to live in an IDP camp. At [40] the FtJ concluded that the appellant was in good health. Unless that situation changes, that is also a finding that can be preserved.
33. Although at [50] the FtJ concluded that there was a lack of evidence to show that the appellant would be at real risk in Somaliland, Mr Toal submitted that the appeal was predicated on the basis that the appellant would be returned to Mogadishu, and Mr Melvin did not dissent from that proposition.
Decision
34. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision in relation to Article 3 of the ECHR is set aside and the appeal is remitted to the First-tier Tribunal for a fresh hearing before a judge other than First-tier Tribunal Judge Andrew, with findings of fact to be preserved as indicated above.

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

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

Upper Tribunal Judge Kopieczek 16/12/16