Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)
Appeal Numbers: UI-2024-000376
First-tier- HU/54719/2022
IA/07399/2022

THE IMMIGRATION ACTS

Decision & Reasons Promulgated
On 12 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

HM
(Anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Aslam, Counsel
For the Respondent: Ms S Mckenzie, Home Office Presenting Officer

Heard at Field House on 26 February 2025

DECISION AND REASONS

Order Regarding Anonymity.

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity, and is to be referred to in these proceedings by the initials HM. 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 Appellant

1. The appellant is a citizen of Somalia born on 1 January 1997. He appeals against a decision of Judge of the First-tier Tribunal Mill dated 15 November 2023. That decision dismissed the appellant’s appeal agaisnt a decision of the respondent dated 9 July 2022. The respondent had refused the appellant’s application for international protection dated 24 June 2020. The appellant left Somalia in August 2018 by car travelling to Ethiopia. From Ethiopia he travelled to Sudan, then Libya before reaching Spain where he claimed asylum. He then travelled to France before reaching the UK on 24 June 2020 via boat.

The Appellant’s Case

2. In July 2017 the appellant started having problems with Al-Shabaab a terrorist organisation. They tried to recruit him and killed his brother and father. He was detained and tortured by Al-Shabaab but later escaped. He is a a member of the Tumal clan (subclan of the Gabooye clan) which is a minority clan. His membership of that clan is accepted by the Respondent. The appellant relies upon an independent country expert report on Somalia prepared by Ms Karen O’Reilly dated 5 April 2023 which finds the appellant’s account highly plausible. The appellant states that he has lost contact with his family in Somalia.

The Decision at First Instance

3. At [35] to [37] of the determination the judge stated: “I find that the Appellant is an economic migrant. He would face no relevant fears of persecution upon return to Somalia. I reject that he has any particular profile which would bring him to the attention of Al-Shabaab. In particular, I reject his claim to have previously been kidnapped by that organisation and similarly reject his claim that his father and brother were killed by that organisation. I accordingly find that the Appellant can return to his home area where it is likely that he will have the continued support of family and clan members who reside there. The Appellant has not lost ties with Somalia. In the alternative, it would also be open to the Appellant to relocate to Mogadishu where, again, I find that he will have the availability of family members and, therefore, a support network.“ The judge dismissed the appeal.

The Onward Appeal

4. The appellant appealed this decision in grounds settled by counsel who represented the appellant at first instance but did not appear before me. There were two main grounds. The first criticised the judge’s treatment of the expert’s report. It was wrong to say that the report was predicated ‘entirely’ as the judge had put it upon accepting the appellant’s claim as being truthful. The expert was well aware that credibility was not a matter for her. The appellant’s profile as a young man made him a typical target for Al-Shabab forcible recruitment.

5. The second ground took issue with certain credibility findings of the judge. The judge had criticised the appellant for not mention his brother’s death in a screening interview but no one had been mentioned at that stage. The appellant had clarified the point in his asylum interview but the judge had not taken the appellant’s explanation into account. Nor had the judge considered the appellant’s explanation for the non production of a death certificate for his father. The judge had not considered the appellant’s explanation for a mistake in who else was or was not kidnapped along with the appellant by Al-Shabaab.

6. The third ground argued that there was an incomplete assessment of the “very significant obstacles” test and a failure to consider the risk to the appellant on return as a failed asylum seeker. The country expert stated that the appellant was at greater risk of unemployment due to being a member of a minority clan; that he would not have a ‘high chance’ of securing employment, healthcare, accommodation and daily required services. This evidence, not factored into the decision, was relevant to the issue of “very significant obstacles” on return.

7. The First-tier refused permission to appeal but on further application to the Upper Tribunal permission was granted, the UTJ stating: “It is arguable that the judge’s approach to the expert report was erroneous for the reasons given in the grounds and that the credibility findings are impugned by an error of fact as to what was said in the screening interview. It is also arguable that the judge failed to take into account the appellant’s explanations for points raised by the respondent in the refusal letter.”

The Hearing Before Me

8. As a result of the decision to grant permission to appeal the matter came before me to determine whether in the first place there was a material error of law in the First-tier determination such that it fell to be set aside.

9. For the appellant counsel argued that it was plainly wrong for the judge to indicate that the expert had accepted the appellant’s account as truthful. At no point in the report had the expert said that she so accepted the appellant’s account. What she had done was considered various reports about who were forcibly recruiting at the time the appellant was in Somalia. That was what an expert would be expected to comment on. The expert’s report was a core piece of the appellant’s case. The judge had failed entirely to properly consider the report. For that reason alone the determination should be set aside.

10. As to ground 2, counsel made a concession on behalf of the appellant in relation to the criticism in the grounds concerning the failure to mention the death of the appellant’s brother and father. The grounds had said that there was no mention of either death but in fact the appellant had mentioned the death of his father but had not mentioned the death of his brother in the screening interview. Nevertheless the appellant had given an explanation for that which the judge had missed. The appellant had mentioned the name of the person who had provided him with the brother’s death certificate. Mention of this person had not been made in a witness statement but was made under cross examination at the hearing. The appellant had given some details and the judge was wrong to say the appellant was vague in his account about this issue.

11. The judge had taken against the appellant in relation to the date on the brother’s death certificate. It was dated 1 June 2017 when in fact the brother did not die until July 2017. This was a fairness point in that this discrepancy had not been put to the appellant in the course of the hearing. I asked counsel what the appellant’s explanation for the apparent discrepancy was but he said there was no further evidence on this point. The judge criticised the appellant for not producing documentary evidence of his father’s death but had not then engaged with the appellant’s explanation for that absence. The judge had looked at question 70 of the interview but not the following questions at 71 to 72. As to who was taken when the appellant was kidnapped, it may have been a mistake as to whether someone else was kidnapped along with the appellant.

12. Ground 3 was self-explanatory and counsel made no submissions on it beyond what is said in the ground itself. Ground 1, the treatment of the expert’s report was the main criticism made of this determination.

13. In reply the presenting officer argued that the first ground did not disclose any error of law on the judge’s part. The judge had given proper scrutiny to the expert support as could be seen by the fact that the judge checked that the report complied with the practice direction. The expert had not carried out her role as an expert. The expert has given no consideration to the inconsistencies or criticisms of the appellant’s claim in her report which indicated that she had relied entirely on the appellant’s evidence. The report had not addressed the inconsistencies. It showed a lack of independence on the expert’s part. The expert should summarise the range of opinions in order to assist a court or tribunal. The expert had taken extracts from the refusal letter but just noted them. She had not provided an opinion but when talking about plausibility had used terms such as “highly plausible” The judge rightly took the view that the expert had not dealt with matters within the framework of the case and placed no weight on the report.

14. As ground 2, the judge mentioned the death certificate being dated 1 June yet the appellant’s difficulties arose the following month in July. Although it was not clear whether the point had been put by the advocates it mattered not because the judge had attached no weight to the documentation. As to ground 3, the judge carried out a proportionality exercise see [38] and [39] where he looked at negative aspects of the appellant’s claim and then at [41] had looked at favourable aspects.

15. Finally in conclusion counsel argued that there had still been no answer to his first point in relation to ground 1, the treatment of the expert report. The judge’s starting point had been that the expert had predicated her report on an acceptance of the appellant’s claim. She had used the expression “highly plausible” but that was very different from an assertion that the appellant was telling the truth. The judge assessed the substance of the death certificate having already decided to place no weight on it. The expert had cited a number of reports in her account yet the judge rejected the plausibility assessment of the report.

Discussion and Findings

16. This is a reasons based challenge to a very detailed determination of the First-tier dismissing the appellant’s claim for international protection. Credibility was central to the issues in the case and the judge was concerned about the number of inconsistencies thrown up by the appellant’s account. The appellant relied on an expert report which had concluded that the appellant’s account was plausible/highly plausible. The judge expressed his concern that in deciding whether the account given by the appellant was plausible that is to say that the events described by the appellant could have happened the expert went beyond the terms of her instructions in finding plausibility even though a careful examination of the account showed it was incredible. The judge’s concern was that the expert did not take into account that there were serious criticisms of the appellant’s account before she stated that the appellant’s account was plausible

17. In submissions to me it was said by the respondent that what the expert should have done was set out a range of views in which aspects of the appellant’s account might be criticised and then analysed whether the appellant’s account was still plausible. Instead the the expert merely noted that the respondent criticised the appellant’s credibility but did not give any indication how that might impact on the plausibility of the claim.

18. The judge was aware that it was not the place of the expert to give an opinion on the credibility of the appellant. That was a matter for the tribunal, see [22] of the determination. The judge said: “she does not recognise at all the features of the Respondent’s criticism of the Appellant’s background claims despite having been provided with material which sets these out.” The impression the expert gave in saying the appellant’s account was plausible whilst ignoring the possible criticisms of that account was in effect to treat the criticisms as if they were of no validity. That was not the function of the expert to do that.

19. I do not accept the criticism by the appellant of the judge’s treatment of the expert’s report. The report did not assist the judge to any great degree and the judge gave his reasons why it did not assist him. The judge was not obliged to follow the report provided he gave adequate reasons why he was not following it, which I find he did. This ground is in truth merely a disagreement with the determination and an attempt to re-argue the appeal.
20. Ground 2, which on the basis of the submissions made to me is of lesser weight is merely a series of disagreements with the judge’s findings. The judge was concerned as to the validity of the death certificate of the appellant’s brother given that there was no very good explanation of how the appellant had come to receive it. It was in any event seriously wrong on the face of it. The appellant seeks to criticise the determination on the basis that it was not put to the appellant that the death certificate had an impossible date. The judge found that the appellant’s problems could not have started in July 2017 if his brother had already died the previous month.

21. The respondent had raised as early as the refusal letter the criticism of the appellant’s inconsistency between saying that only his father had been killed or that both his father and brother had been killed. The documentary evidence the appellant produced in the form of a death certificate (which had a number of other problems set out by the judge) did not resolve the question of whether the appellant’s brother had or had not died after Al Shabaab took a malign interest in the appellant. It was therefore incumbent on the appellant (on whom the burden of proof rested) to explain clearly who had been killed and when. That the appellant was unable to do this undermined the appellant’s general credibility.

22. Although the appellant argues that he was not asked during the hearing why the death certificate was inaccurate, it is noticeable that the appellant still does not provide an explanation in his grounds of onward appeal as to why the death certificate was inaccurate. The appellant does use the grounds of onward appeal to respond to some of the concerns raised by the judge but the appellant is noticeably silent in the grounds about the problems apparent in the death certificate. Overall this ground too can be characterised as a mere disagreement with the result. The appellant’s inconsistencies gave the impression that the appellant had a limited grasp of the facts of his own case. It was open to the judge to find that the appellant’s claim to come to the adverse attention of Al Shabaab was not credible.

23. I remind myself that the judge at first instance had the advantage of seeing the appellant give evidence and be cross examined. This was a detailed determination in which the judge set out the country background information as explained in country guidance authorities. The appellant argues that the judge has failed to consider the very significant obstacles the appellant would face upon return. This ground too illustrates the difficulties resulting from the expert’s failure to set out the range of issues in the case in more detail. The expert says that the appellant would face difficulties as a member of a minority clan and would likely be unemployed on return.

24. The problem for the appellant is that the judge found for very sound reasons that the appellant had not lost contact with his family and that they would be able to give him support upon return. There were no very significant obstacles for the appellant to overcome he would simply return to Somalia and to live with his family as he had done before leaving the country. This ground is a mere disagreement and an attempt to reargue the case. Ground 3 was not argued with any great force before me which must be right given the judge’s unassailable conclusions on the whereabouts of the appellant’s family. Overall therefore I do not find there is any material error of law in the judge’s determination and I dismiss the onward appeal against the decision of Judge Mills.

Notice of Decision

I dismiss the appellant’s onward appeal against the dismissal of his appeal by the First-tier.

Appeal dismissed

Signed this 4th day of March 2025

……………………………………………….
Judge Woodcraft
Deputy Upper Tribunal Judge