Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No. UI-2023-004950

FtT No. PA/ 51356/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 21 November 2024

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
UPPER TRIBUNAL JUDGE MAHMOOD

Between

DM
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A. Jones, counsel instructed by Terence Ray Solicitors.
For the Respondent: Mr W. Hansen, counsel instructed by GLD.

Heard at Field House on 1 October 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court. The parties may seek permission on notice to vary this direction.

DECISION AND REASONS

Anonymity
1. This appeal relates to a protection claim. For that reason, it is appropriate to continue the anonymity order which was previously made by the Upper Tribunal. The parties may seek permission, on notice, with reasons for a variation of the anonymity order.
Introduction
2. This is the remaking of the decision in the Appellant’s appeal following the setting aside, in part, of the decision of First-tier Tribunal Judge Grey (“the Judge”) who had dismissed the Appellant’s appeal against the decision to refuse his asylum and human rights claim.

3. The Appellant is a national of Somalia. He was born in 1990. He arrived in the United Kingdom on 15 January 2015 and claimed asylum. The background to the Appellant’s claim is that he would be at risk on return to Somalia because he claimed to be a member of a clan called the Awramale and which he states is a minority. The Appellant contends that this places him at a real risk of persecution or ill-treatment on return because he is at particular risk from a majority clan called the Ogaden.
Procedural History
4. The Appellant’s asylum claim had been refused by the Respondent on 5 June 2015 for non-compliance reasons. The Appellant raised further submissions on 3 February 2016. An appeal against the Respondent’s decision which had refused those further submissions was dismissed by First-tier Tribunal Judge Ford on 13 October 2016.

5. The Appellant again lodged further submissions on 20 September 2022. The Respondent refused the Appellant’s asylum and human rights claim on 16 February 2023. It is the appeal against that decision which was heard by the Judge on 10 October 2023 whereby she had dismissed the appeal on all grounds.

6. Permission to appeal against the decision of the Judge was granted. Thereafter, at an Error of Law Hearing on 22 December 2023 Deputy Upper Tribunal Judge Mahmood, upon the joint submissions of the parties, found that the decision of the Judge contained a material error of law in respect of the assessment of the Appellant’s Article 3 ECHR claim. The Judge had dismissed the asylum claim pursuant to section 32 of the Nationality and Borders Act 2022 (“NABA”). The s32 NABA higher standard of proof was then erroneously applied by the Judge to the Article 3 European Convention on Human Rights (“EHCR”) when she had dismissed the appeal.

7. A separate consideration of the Appellant’s Article 3 EHCR claim to the lower standard of proof had not been undertaken and was therefore required.

8. On 27 March 2024, a Presidential panel was to remake the decision, but that hearing was converted to a preliminary issue hearing because it was the submission of both parties that it would not be possible for there to be a fair hearing without considering further evidence. In addition, Mr Hansen had wished to cross examine the Appellant.
Preliminary Issue

9. The preliminary issue addressed the correct standard of proof to be applied to an Article 3 ECHR claim when an asylum claim has been correctly dismissed to the balance of probabilities standard pursuant to the new provisions in section 32 of the Nationality and Borders Act 2022.

10. The Presidential Panel promulgated its decision in respect of the preliminary issue on 30 September 2024. In summary, the Panel concluded that whilst in the past it might have been sufficient for advocates to submit, and for the First-tier Tribunal to conclude, an Article 3 claim stands or falls with the Refugee Convention claim, that is no longer the correct approach when section 32 NABA applies.

11. Importantly, there remains a requirement that there be a separate consideration of the Appellant’s claim pursuant to Article 3 EHCR. Claims based on Article 3 ECHR remain subject to the lower standard of proof. This requires that “substantial grounds have been shown for believing” that expulsion would result in the person being exposed to a “real risk” of torture or inhuman or degrading treatment or punishment as set out in Soering v United Kingdom (1989) 11 EHRR 439 at [91].
The Hearing Before Us

12. Directions had been provided for the filing and service of updating evidence and for skeleton arguments from the parties. The Appellant’s bundle for this hearing was not correctly paginated with repetitive documents in different places. No new evidence had been filed.

13. The issues between the parties were identified at paragraph 14 of Ms Jones’ skeleton argument (undated but filed on 16 September 2024) as being,

(1) Whether the Awramale minority clan exists;
(2) Whether the Appellant is a member of Awramale minority clan;
(3) Whether the Appellant was injured in the way that he claimed;
(4) Whether as a result of the first 3 issues that the Appellant has been the victim of treatment contrary to Article 3 EHCR as result of his ethnic or tribal origin; and
(5) Whether the Appellant is at risk of such treatment on return contrary to Article 3.

14. Mr Hansen informed us at the hearing that he agreed that those were the issues for us to consider save that there was a caveat to (e) in that the Judge had dealt with the question of risk to the lower standard at paragraph 73 in the context of the refugee claim.

15. We note that the Judge had said at paragraph 73 that having considered the entirety of the evidence with anxious scrutiny that the Appellant had failed to demonstrate that there was a reasonable likelihood that he would be persecuted on return.
The Oral Evidence and the Parties’ Submissions

16. The Appellant was called to give evidence. He adopted his witness statement as part of his evidence. There was no further examination in chief and Mr Hansen had indicated previously that because there had been no updating evidence from the Appellant, then he would not be cross examining the Appellant.

17. We then heard closing submissions from Mr Hansen. In summary he accepted that the matter concerned Article 3 ECHR. His overarching submission was that the Judge’s adverse credibility findings and those of Judge Ford, all to the lower standard ought to lead to a dismissal of the appeal. He submitted that there was an insuperable obstacle for the Appellant because Judge Ford’s findings were all preserved, except for membership of the Awramale clan. He submitted that that ‘one swallow did not make a Summer’ for the Appellant.

18. Mr Hansen said he wished to re-emphasise that the Judge had found no reason to depart from Judge Ford’s earlier determination. At paragraphs 60 to 62, the Judge had expanded by providing further reasons to dismiss the appeal. He submitted that there was no new evidence before the Upper Tribunal to justify any departure from those findings. He said that whilst the Judge had accepted that the Awramale clan exists, she provided a compelling critique of whether the Appellant was at risk. The Judge had concluded that the Appellant was not even a member of the Awramale clan. At paragraphs 53 to 56, the Judge had gone on to consider that even if the Appellant was a member of Awramale clan, there was no information that they are persecuted by the Ogaden Clan. Mr Hansen said that not even Mr Farah, the Appellant’s expert, had mentioned this.

19. Mr Hansen said that Mr Farah’s report was like no expert report he had ever seen. It was a series of recordings and assessment, and one had to look long and hard for the Ogaden clan. Most of the report seemed to be a geography test of Somali culture and most of it is completely irrelevant. He took us to question 51 which mentioned a fear of Al Shabab and Mr Hansen had initially said that there was not even mention of the Ogaden clan.

20. Mr Hansen submitted that Mr Farah’s report was an unsatisfactory report. Mr Hansen corrected his earlier submission to say that there was just one mention of the Ogaden clan at question 20.

21. Mr Hansen referred to the report of Dr Crawford, Consultant in Accident and Emergency, dated 6 January 2022 and said that there was no issue that the Appellant’s right toe is missing. In terms of the Istanbul Protocol, the conclusion was that the injuries were consistent with the account, though not highly consistent, and not typical of nor diagnostic of the injury. The expert view was the lowest end of the spectrum.

22. Ms Jones confirmed that there was no reliance on arguments about living conditions in Somalia or in terms of risk from the Al-Shabab. Mr Hansen said that he therefore did not need to take us to the Country Guidance case as there was no reliance on those matters. Mr Hansen said that the Appellant’s witness statement was more like a skeleton argument than a witness statement.

23. Ms Jones in her submissions said in summary that Mr Hansen was wrong to state the determination of Judge Ford was an insuperable obstacle for the Appellant because thereafter the Secretary of State had accepted the fresh submissions as amounting to a fresh claim. She said that, therefore, the Respondent had accepted that the hypothetical judge could decide that the Appellant’s case was well founded. She said that Mr Hansen was, in effect attempting to uphold Judge Ford’s findings.

24. Ms Jones submitted that the Judge’s findings relating to Article 3 had to be made afresh.

25. Ms Jones submitted that it was not correct for Mr Hansen to submit that this was an attempt to get around the findings of Judge Ford. The Appellant was shot in his right toe, and it took a year to recover. She referred us to paragraphs 3 to 12 and to paragraph 40 of the Judge’s decision. She also said that at paragraph 46 Judge Ford had not even accepted that the Awramale clan existed. The Ogaden clan was accepted to be a majority noble clan. At paragraphs 47 and 48 there was reference to the non-persecution of them. Ms Jones submitted that it was of fundamental importance whether the Awramale clan existed and whether the Appellant was a member of it.

26. Ms Jones said that the task for the Upper Tribunal was to consider those matters and that the expert reports of Mr Farah and Mr Crawford were very relevant as was the list of issues. Ms Jones referred to paragraph 14 of her skeleton argument which referred to whether the clan existed and the way that the Appellant had claimed to be injured.

27. Ms Jones observed that Judge Ford had said that the Awramale clan did not exist, but the Judge had found that it did exist. The Appellant had given the name of the clan from the beginning. Albeit it was not determinative that the Appellant was a member of the Awramale clan, it remained relevant.

28. In respect of credibility overall, Ms Jones said that she relied on Mr Farah’s report. He was very familiar with Somalia and had obtained a law degree in London. Mr Farah’s opinion was to be given some weight. He had read the previous determination and the Home Office interview before preparing his report and he had interviewed the Appellant in person and understood his duties as an expert. She said that Mr Farah had set out all of the questions that he had asked the Appellant. Those questions were criticised at the First-tier Tribunal. In respect of whether the Awramale clan existed and if the Appellant was a member of it, the questions related to geography or culture and were relevant. In addition, occupations, work, and the geographical areas around where the Appellant was brought up were also mentioned. There were also more questions generally about Somalia during the interview by the expert.

29. Ms Jones invited us to conclude that given the Judge had said that the Awramale clan existed, then it meant that the Appellant was a member too.

30. Ms Jones submitted that Mr Crawford’s report also assisted with assessing credibility overall. She referred to paragraph 21 of her skeleton argument that the injuries suffered by the Appellant were a very specific account. There was a gunshot and a serious infection with no formal medical treatment provided. It was material that the injury was consistent with that account in a number of ways. It was submitted that page 225 of the bundle showed that there were 3 separate injuries which were consistent. The doctor considered the unusual and detailed account of the big toe and the scarring.

31. Ms Jones submitted that taking those matters into account in the round, the Awramale clan did exist on the lower standard. It was the Appellant’s case that he was the subject of Article 3 mistreatment in the past and that the same risk would arise in the future.

32. Ms Jones referred us to the Country Policy and Information Note (“CPIN”) of January 2019, version 3 at page 13, paragraph 3. That referred to the clan structure. There were references to the noble clans including the Ogaden being the largest group.

33. We refer to that extract here for ease,

“The "noble" clan families trace their origin back to a mythical common ancestor called Samaal, who is said to be descended from the Prophet Mohammed. These groups are nomadic pastoralists. The clan family is the highest level of clanship. Its members can count up to 30 generations back to a common ancestor. The four "noble" (Samaale) clan families are the following:
• 'The Darod are usually divided into three major groups: Ogaden, Marehan and Harti. The Harti are a federation of three clans: the Majerteen are the main clan in Puntland; the Dulbahante and Warsangeli live in the disputed border areas between Puntland and Somaliland. The Ogaden are the most important Somali clan in Ethiopia, but also quite influential in both Jubba regions, while the Marehan are present in South and Central Somalia.”
34. Ms Jones confirmed that there was nothing in that CPIN or in the other reports in the bundles about the Awramale clan.

35. Ms Jones said that the Country Guidance case of OA (Somalia) CG [2022] UKUT 00033 related to Article 3 EHCR living conditions and the Reer Hamar clan. She said she would not address that any further as it was not of relevant to this particular case as the basis of this case was rather different.

36. Finally, Ms Jones said that there was no separate Article 8 ECHR claim, and that the Appellant’s family is not in the UK.

Analysis and Consideration
37. The decision in Devaseelan (Second Appeals-ECHR-Extra-Territorial Effect) Sri Lanka* [2002] UKIAT 00702 at paragraph 39 is well known, (the bold and underlining is in the original),
“(1) The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the Appellant's status at the time it was made. In principle issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.
(2) Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.
(3) Facts happening before the first Adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.”
38. Judge Ford made various adverse findings. The Judge correctly considered that decision as her starting point. The Judge’s findings are retained findings. We also consider Judge Ford’s findings as our starting point.
39. In the Error of Law decision following the hearing on 22 December 2023 the Upper Tribunal listed the retained findings at paragraph 10 of its decision,
(1) At paragraph 35 that the Appellant’s claimed ethnicity and account was rejected in its entirety by Judge Ford.
(2) An expert report of Mr Mohamed Kalif Farah in respect of the Appellant’s clan membership was a significant matter to consider since Judge’ Ford’s decision. At paragraphs 48 to 52 the Judge listed various concerns about Mr Farah’s report and concluded “On the basis of the expert’s report I find that the Awramale clan does exist and is a minority clan. However given the shortcomings in the expert’s report as identified above. I find that there is insufficient evidence for me to depart from the findings of Judge Ford regarding the Appellant’s clan membership. I find that the Appellant has failed to establish on the balance of probabilities that he is a member of the Awramale clan and has failed to establish a Convention reason. His asylum claim fails on this basis alone.”
(3) At paragraphs 52 and 56 to 58 the Judge referred to a medical report by Dr Rudy Crawford, Consultant in Accident and Emergency Medicine and Surgery. In respect of the Appellant’s claimed injuries the Judge said at paragraph 58 that, “I accept that Dr Crawford has appropriate expertise in relation to the medical matters on which he opines. I attach weight to this report which confirms the possible causes of the Appellant’s injuries are the reasons set out in the account the Appellant has put forward.”
(4) At paragraphs 59 to 62 the Judge assessed the matters in the round and noted that there were further inconsistencies in the Appellant’s account since the hearing before Judge Ford. The Judge concluded at paragraph 62 that the Appellant had failed to establish his account relating to the alleged attack by the Ogaden clan. The Judge also concluded that the Appellant had not established to the s32(2) NABA standard that he feared persecution on the basis of being a member of a minority clan. The Judge concluded, “As such, I find that I am unable to depart from the previous findings in this regard.”
(5) At paragraphs 67 to 69 the Judge concluded that there was no sufficient evidence and no good reason to depart from the findings of Judge Ford that the Appellant had not established that he was not in contact with his family in Somalia.
(6) The Judge considered the Country Guidance cases, including the recent case of OA( Somalia) CG 2022 UKUT 00033 (IAC) and the background material and said that there were no sufficient reasons to depart otherwise from the findings of Judge Ford in 2016.
(7) At paragraph 72 the Judge found that the Appellant was 33 years of age and a healthy man, other than having an amputated toe. The Judge also said that the Appellant had knowledge of the language, culture and society in Somalia. The Appellant was a resourceful man and had the ability to seek support from family and clan members in Somalia.
(8) At paragraph 74 the Judge concluded that the conditions in the Appellant’s home area or Mogadishu were not such as to amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk to lead to a grant of Humanitarian Protection.
(9) Finally, the Judge said that although there were no specific references by the Appellant’s counsel to Article 8 ECHR, she considered it any event. Having done so, the fact that the Appellant had been in the UK since 2015, a period of 8 years, would not lead to the Appellant facing very significant obstacles to re-integrating himself into life in Somalia and thereby para 276ADE(i)(vi) of the Immigration Rules was not met. The Appellant had not adduced any evidence of a partner or family in the UK. There was insufficient evidence to show that Article 8 was engaged.

40. There was no further evidence provided to us for this hearing and the Appellant’s oral evidence amounted to adopting his witness statements and evidence from the previous hearings. Nor was there any reliance on any additional expert or other evidence on behalf of the Appellant.
Analysis and Consideration
41. We say from the outset that because the Judge accepted the existence of the Awramale clan, then we agree with Ms Jones and we reject Mr Hansen’s submission that we can simply rely on Judge Ford’s decision. Ms Jones is correct to identify that the Respondent had accepted the Appellant’s further submissions as amounting to a fresh claim following Judge Ford’s decision. Therefore, we must assess the available evidence.

42. We remind ourselves we must assess the Appellant’s Article 3 claim to the lower standard of proof. That requires that “substantial grounds have been shown for believing” that expulsion would result in the person being exposed to a “real risk” of torture or inhuman or degrading treatment or punishment as set out in Soering v United Kingdom (1989) 11 EHRR 439 at [91].

43. We remind ourselves that the Supreme Court in Griffiths v Tui UK Ltd [2023] UKSC 48; [2023] 3 WLR 1204 where Lord Hodge, with whom the other Supreme Court Justices agreed, made clear that,

“37. Because an expert's task is to assist the judge in matters outside the judge's expertise, and it is the judge's role to decide the case, the quality of an expert's reasoning is of prime importance. This court gave guidance on the role of the expert in Kennedy v Cordia [2016] 1 WLR 597 , in which, in the judgment of Lord Reed and Lord Hodge JJSC with whom the other Justices agreed, it was stated:
“48. An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or ‘bare ipse dixit’ carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh 1953 SC 34, 40 .“

44. We use the expert reports of Mr Farah and of Dr Crawford as tools in the assessment of the Appellant’s credibility.

45. We observe that the expert report of Mr Farah is some 4 pages in length. It is not a well drafted report, but that does not necessarily dilute its reliability. A series of questions were asked by Mr Farah to which Mr Farah provides no commentary other than to say ‘correct’ next to the reply to the question. Mr Farah states that the interview with the Appellant lasted 55 minutes.

46. The Supreme Court’s judgment Kennedy v Cordia (Services) Ltd [2016] UKSC 6; [2016] 1 W.L.R. 597 at paragraphs 43 to 46 makes clear that it remains for us to assess whether Mr Farah’s report assists us.

47. Whilst we note that Mr Farah has said that he has complied with the duties of experts, he has not set those duties out in full.

48. We take as a snapshot just two elements of Mr Farah’s report to show its extent.

49. Question 2 of the expert report shows the Appellant being asked to name his clan and the answer is “Awramale”, to which the expert has said “correct”. It is from this answer that Mr Farah proceeds on the basis that the Appellant is a member of Awramale clan.

50. We do not follow how Mr Farah came to the conclusion of clan membership simply because the Appellant had said he was a member and was considered ‘correct’ having informed Mr Farah of the name of the clan.

51. We note further that Mr Farah does not state how or why the Appellant’s knowledge is ‘correct’ when he has said that the Appellant’s answers were ‘correct’. The background material and Country Guidance for Somalia is very extensive, but there is no reference to any of those background or County Guidance reports within Mr Farah’s report.

52. In AA [Expert evidence, assessment] Somalia [2004] UKIAT 00221 guidance was provided in respect of the assessment of expert evidence. Paragraphs 8 and 9 make clear that,

“8. With respect to the adjudicator, we are bound to say that Mr Morris was right in his submission that the adjudicator attached undue weight to Mr Allen's statement. An adjudicator should not accept without question the opinions expressed by an individual merely because he himself claims to be an expert on a particular subject. It is not sufficient for an individual simply to assert that he is an expert, or to express opinions unsupported by proper sources and reasons. Instead, an individual purporting to give an expert opinion must demonstrate that he is in reality an expert in relation to those matters on which he is expressing his opinion, and that he has current and reliable knowledge as to those matters, e.g. if he is expressing opinion regarding the country conditions in a particular country.
9. In addition, he must identify with sufficient particularity to enable their weight to be assessed properly by an adjudicator the sources of his information, and must also give proper, intelligible and adequate reasons for arriving at the conclusions expressed by him. Adjudicators should exercise particular care in assessing what weight may properly be attached to the views expressed by an individual whose opinions are adduced on a regular basis, whether before adjudicators or this Tribunal, so as to ensure that he has not allowed his views to be influenced, even unconsciously, by the hope or prospect of receiving further instructions of a similar kind in the future.”
53. In MH (review; slip rule; church witnesses) [2022] UKUT 125 (IAC), the former President and Upper Tribunal Judge Blundell at paragraphs 38 to 48 considered the duty placed on experts and that ultimately the weight to be afforded to any such evidence is a matter for the judge.

54. We conclude that the expert report of Mr Farah assists us little further than to report that the Awramale clan exists. There is simply no actual analysis or reasoning as to why Mr Farah concluded that the Appellant belonged to the Awramale clan. References by the Appellant to rivers or other clans and the neighbouring countries or cities merely explain that the Appellant is a national of Somalia, but that has not been in dispute in this case.

55. The attachments to Mr Farahs’s report of a handful of unreported decisions in which other judges have accepted his reports has not dissuaded us from this view as those cases add little context or assistance to the facts of this case.

56. Therefore, we are only able to very give limited weight to Mr Farah’s report about the Appellant being a member of the Awramale clan.

57. We note of course that the background material does refer to the Ogaden clan as being a majority clan, but that of itself does not assist us to conclude that the Appellant is a member of the Awramale clan. As Judge Ford noted at paragraph 54 of her decision, even Mr Farah’s report does not confirm that the Awramale clan are persecuted by the Ogaden clan.

58. We turn to the medical expert report of Dr Crawford which we conclude has provided some assistance to us.

59. Dr Crawford correctly refers to the Istanbul Protocol. The formal title, being the “Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment", which was submitted to the UN High Commissioner for Human Rights in 1999. The manual provides as follows:

"187. … For each lesion and for the overall pattern of lesions, the physician should indicate the degree of consistency between it and the attribution given by the patient. The following terms are generally used:
(a) Not consistent: the lesion could not have been caused by the trauma described;
(b) Consistent with: the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes;
(c) Highly consistent: the lesion could have been caused by the trauma described, and there are few other possible causes;
(d) Typical of: this is an appearance that is usually found with this type of trauma, but there are other possible causes;
(e) Diagnostic of: this appearance could not have been caused in any other way than that described.
188. Ultimately, it is the overall evaluation of all lesions and not the consistency of each lesion with a particular form of torture that is important in assessing the torture story …"
60. Dr Crawford concluded that the missing big toe was consistent with a gunshot wound and that there had not been any formal medical or surgical intervention. The scarring to the forehead was consistent with trauma with blunt instruments and were consistent with assaults as were scars on the shins. For each injury there were many other possible causes.
61. Therefore, we consider the expert evidence as evidence in the context of assessing the Appellant’s credibility and general claim as a tool to assist us. We note too that Dr Crawford referred to the Appellant as providing a convincing account about the claimed gunshot wound.
62. We must consider the evidence for ourselves, and we note the retained findings made in this case and that the highest that the medical expert evidence provides is that the injuries are consistent with the trauma, but with there being many other possible causes.
63. Judge Ford made numerous adverse findings to the lower standard of proof, including in respect of how the alleged injuries occurred. The Judge rejected the Appellant’s evidence. Importantly those findings were made to the lower standard of proof.
64. The Appellant’s own evidence before us comprised his oral evidence in which he adopted his witness statement of 9 May 2023. That witness statement largely disagrees with the Respondent’s Reasons for Refusal Letter and does not provide much in the way of explanation or evidence.
65. Having considered the evidence in the round, we conclude that we are not satisfied even to the low standard of proof that the Appellant is a member of the Awramale clan or that he was tortured in the past or that he is at risk on return.
66. We come to this decision for the following reasons.
67. Firstly, Judge Ford found to the lower standard that the Appellant’s account of what occurred was not true. Whilst we carefully consider that since then the Appellant has been able to obtain important evidence that the Awramale clan exists, the evidence of Mr Farah provides little if any explanation as to why it was concluded that the Appellant was a member of the Awramale clan.
68. We apply the decisions in Kennedy v Cordia, MH and AA (Somalia). Because Mr Farah has provided no analysis or consideration of how and why he came to his opinions, the very limited weight we can place on his report is insufficient to overcome even that low test.
69. We have considered the expert report of Dr Crawford alongside the expert report of Mr Farah. As we have detailed above, whilst Dr Crawford thought that the Appellant provided a ‘convincing account’ the matter is for us to decide, and we note that Dr Crawford concluded that there were several other possible causes for the ‘gunshot wound’ and scarring.
70. We assess the evidence of the Appellant of how he claims he attained the injuries during the problems relating to his wife being attacked and raped, but we conclude that the new evidence does not displace the findings of Judge Ford which we must consider as the starting point.
71. We reach that conclusion because the new expert evidence is at the lowest end of the spectrum of the Manual. There were many other possible causes to the injuries. Those other possible causes, taken with the previous adverse findings of Judge Ford and the lack of further explanation from the Appellant, despite the existence of the clan means that there is insufficient evidence to meet even the low standard of proof.
72. The background material is repeated several times in the 700+ paged bundle provided to us and no specific pages were referred to. Nonetheless we have considered the reports provided for ourselves. We note that the reports are of some antiquity and none of the matters reported displace the Country Guidance or assist the Appellant’s case in any further way.
73. We therefore return to the issues and conclude as follows:
(1) Whether the minority clan exists: We conclude that the Awramale clan does exist.
(2) Whether the Appellant is a member of this minority clan: We conclude that the Appellant is not a member of the Awramale clan.
(3) Whether the Appellant was injured in the way that he claims: The Appellant has not established that he was injured in the way that he claims.
(4) Whether as a result of the first 3 issues that the Appellant has been the victim of treatment contrary to Article 3 EHCR as result of his ethnic or tribal origin: The Appellant has not established that he is the victim of treatment contrary to Article 3 ECHR as a result of his ethnic or tribal origin.
(5) Whether the Appellant is at risk of such treatment on return contrary to Article 3: The Appellant is not at risk of such treatment on return, it being accepted that there was no wider Article 3 claim relied upon in any event or that comes within the Country Guidance.
74. We therefore dismiss the Appellant’s appeal on Article 3 ECHR grounds.
Notice of decision
There was a material error of law in the decision of the First-tier Tribunal in respect of Article 3 ECHR.
We remake the decision in respect of Article 3 ECHR, and we dismiss the Appellant’s Article 3 ECHR claim.
For the avoidance of doubt the Appellant’s asylum, humanitarian protection and Article 8 ECHR claim had been dismissed by the First-tier Tribunal and against which there was no appeal. The appeal remains dismissed in respect of those matters too.

15 November 2024 Abid Mahmood
Upper Tribunal Judge Mahmood

IN THE UPPER TRIBUNAL
Case No. UI-2023-004950
IMMIGRATION AND ASYLUM CHAMBER

FtT No. PA/ 51356/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

THE HONOURABLE MR JUSTICE DOVE, PRESIDENT
UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

DM
(ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A. Jones, counsel instructed by Terence Ray Solicitors.
For the Respondent: Mr W. Hansen, counsel instructed by GLD.

Heard at Field House on 27 March 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court. The parties may seek permission on notice to vary this direction.

DECISION ON PRELIMINARY ISSUE
Anonymity
1. This appeal relates to a protection claim. For that reason, it is appropriate to continue the anonymity order which was previously made at the Upper Tribunal. The parties may seek permission, on notice, with reasons for a variation of the anonymity order.
Preliminary Issue
2. This matter came before us as a panel in respect of a remaking hearing which was converted to a preliminary issue hearing. That issue being the correct standard of proof to be applied to an Article 3 European Convention on Human Rights (“ECHR”) claim when an asylum claim has been correctly dismissed pursuant to the balance of probabilities standard pursuant to the new provisions in section 32 of the Nationality and Borders Act 2022 (“NABA”).
Procedural History
3. The Appellant’s claim was that he would be at risk on return to Somalia because he is a member of a clan called the Awramale clan, said to be a minority clan. He said he was at risk from a majority clan called the Ogaden Clan.
4. Upon the joint submission of the parties at an Error of Law Hearing on 22 December 2023 Deputy Upper Tribunal Judge Mahmood found that the decision of First-tier Tribunal Judge Grey (“the Judge”) contained a material error of law in respect of the assessment of the Appellant’s Article 3 ECHR claim. The Judge had dismissed the asylum claim pursuant to s32 NABA. The s32 NABA higher standard of proof was also then erroneously applied by Judge to the Article 3 ECHR when she dismissed the appeal.
The Hearing Before Us
5. Having heard from both parties, we acceded to the parties’ submissions that it was not possible for us to deal fairly with the matter without further evidence. In the circumstances, and because Mr Hansen, had not had the opportunity to prepare fully for cross examination of the Appellant, we announced that we would adjourn the matter for a resumed hearing at which the Appellant would provide oral evidence and that we would provide this decision in respect of the preliminary issue.
6. On the morning of the hearing, we invited counsel to set out in writing the agreed issues and point of law that we were being required to consider. Their agreed note provided to us later at the hearing which we have considered states,
“(1) It is common ground that this case concerns the interplay between NABA 2022 s.32 and Article 3 ECHR when assessing an asylum claim and human rights claim at the appeal stage.
(2) Owing to confusion at the FTT, to clarify and confirm:
(i) the s32 NABA assessment involves a two-stage process, applying the balance of probabilities standard at stage 1 (see section 32(2) and the “reasonable likelihood” standard at stage 2 (see s32(4));
(ii) It remains necessary for the Tribunal to consider any Article 3 ECHR claim separately, and in doing so, to apply the Soering standard applicable to Article 3 claims.”

The Correct Approach to s32 NABA and Article 3 ECHR
7. Whilst in the past it might have been sufficient for advocates to submit and for the First-tier Tribunal to conclude, an Article 3 claim stands or falls with the Refugee Convention claim, that is no longer the correct approach when section 32 NABA applies.
8. In JCK (s.32 NABA)(Botswana) [2024] UKUT 00100 (IAC) the Upper Tribunal at paragraphs 25 to 27 refers to the proper approach to section 32 NABA.
9. Section 32 NABA provides that there is a two stage process when assessing a Refugee Convention claim made on or after 28 June 2022.
10. Section 32(2) NABA refers to Stage One and provides that the Tribunal
“… Must first determine, on the balance of probabilities—
(a) whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution) and
(b) whether the asylum seeker does in fact fear such persecution in their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence) as a result of that characteristic…”

11. Therefore, Stage One requires that the decision maker must apply a different standard of proof at different points in the determination process. Section 32(2)(a) requires that the Tribunal must first determine whether it is more likely than not, (the balance of probabilities test), whether the Appellant has a characteristic which would cause them to fear persecution for one or more of the convention reasons. Then s32(2)(b) requires assessment to that same test whether it is more likely than not, (the balance of probabilities test) whether the person does in fact fear persecution.
12. To make that assessment when making findings about the material elements of the claim, the Tribunal will consider those elements that meet the balance of the probabilities standard of proof.
13. Stage Two is to be found in section 32(3) and (4) NABA. For ease that provides in summarised form that,
“(3) Subsection 4 applies if the decision makes finds that:

(a) the asylum seeker has a characteristic mentioned in section (2)(a) (or has such
as characteristic attributed to them), and
(b) the asylum seeker fears persecution as mentioned in subsection (2)(b)

(4) The decision-maker must determine whether there is a reasonable likelihood that, if the asylum seeker were returned to their country of nationality…

(a) they would be persecuted as a result of a characteristic mentioned in subsection (2)(a).”

14. Therefore, Stage Two requires that the Tribunal is required to assess whether there is a real risk that the Appellant would face the harm they fear if they returned to their country of nationality. This assessment must be made to the lower standard of a ‘reasonable likelihood’, in the same way as in claims made before s32 NABA 2022 came into force.
15. Importantly, there remains a requirement that there be a separate consideration of the Appellant’s claim pursuant to Article 3 EHCR. Claims made based on Article 3 ECHR remain subject to the lower standard of proof. This requires that “substantial grounds have been shown for believing” that expulsion would result in the person being exposed to a “real risk” of torture or inhuman or degrading treatment or punishment as set out in Soering v United Kingdom (1989) 11 EHRR 439 at [91].
16. The Judge materially erred in law in not undertaking a separate consideration of the Appellant’s Article 3 EHCR claim to the lower standard of proof.
17. Having addressed the preliminary issue, we will consider the Appellant’s appeal at a resumed hearing for which we have provided separate directions, including for the provision of a bundle and skeleton arguments.

14 May 2024 Abid Mahmood
Deputy Upper Tribunal Judge Mahmood