Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001776

First-tier Tribunal No: PA/52883/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 22 April 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI
DEPUTY UPPER TRIBUNAL JUDGE WALSH

Between

AM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. S. Winter, Advocate, Instructed by Maguire Solicitors
For the Respondent: Ms. R Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 24 February 2025

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.

DECISION AND REASONS
1. As the appellant’s protection claim remains a live issue and is yet to be finally determined and, upon the Tribunal raising it at the hearing following which Mr Winter applied for the appellant’s anonymity and in respect of which Ms Ahmed remained neutral (albeit that she acknowledged that such orders are often made when risk remains live), we granted the appellant anonymity because the importance of facilitating the discharge of the obligations of the United Kingdom under the Refugee Convention in the circumstances of this case where the appellant claims a specific risk of persecution outweighs the principle of open justice.
2. This is an appeal against a decision of a judge of the First-Tier Tribunal Judge (“the judge”) dated 10th April 2023. By that decision, the judge hearing the appeal dismissed the appellant’s appeal against the decision of the Secretary of State dated 8 July 2022 to refuse his claims for asylum and humanitarian protection and human rights grounds (Articles 2, 3, and 8).
3. The Appellant applied to the Upper Tribunal for permission to appeal on 9th April 2024. Permission to appeal was granted by Upper Tribunal Judge Owens on 26th June 2024. Although permission was not limited, Judge Owens found it particularly arguable that the judge’s findings that the appellant would have been exposed to harm contrary to Article 3 were irrational in light of other findings about the lack of family support and membership of a minority gang.
Background to the Appeal
4. The appellant is a citizen of Somalia born on 1st January 1998. He claimed asylum in the United Kingdom on 19 November 2020 on grounds that he would face persecution as a member of a particular social group, namely the Madhidan minority clan. In particular he feared retaliation by the Hawiye majority clan who he believed murdered his brother. The same factual matrix was relied on in respect of his claim for humanitarian protection and human rights grounds under Articles and 3 of the ECHR. The appellant further argued that he would not be able to re-establish himself in Somalia and consequently his return there would breach Articles 3 and 8 of the ECHR.
The Grounds of Appeal and the Concession
5. There are two grounds of appeal of which the first contains five sub-sections. In broad terms, the content of Ground 1 can be summarised as the judge made irrational findings as to the appellant’s situation on return to Mogadishu by appearing at times to make findings or accept factors which would support a risk on return (when read in light of the country guidance) yet finding (having set out the country guidance) that the appellant would not be at risk of return without explaining why she did so (G1(i) and (ii)). The appellant challenges here include to the judge’s assessment of clan support (G1(ii), (iii), (iv) and (v)) and his prospects of re-establishing himself in Mogadishu (G1(iv)). In essence, Ground 1 contends that it is not possible to understand the basis on which the appellant’s protection and human rights claims were dismissed.
6. Ground 2 challenged the way in which the judge dealt with the expert report on which the appellant relied on the grounds that she failed to take into account the expert’s expertise, qualifications and experience and erred by excluding the report altogether contrary to MN v Secretary of State for the Home Department [2021] 1WLR 1956.
7. Prior to the commencement of the hearing, Ms. Ahmed indicated that the respondent conceded Ground 1 of the appeal as set out within the 5 points raised in Ground 1. She elaborated upon this at the hearing and also set out other ways in which she contended the judge erred, although as she accepted at the hearing, the respondent had not filed a rule 24 notice and her additional submissions went outside the grounds on which the appellant relied. Ground 2 was not conceded. Nevertheless, in relation to her concession on Ground 1 she submitted that, in light of the material errors of law, the decision of the First-tier was unsustainable and she submitted that none of the judge’s findings could be preserved.
8. Mr. Winter accepted that the Secretary of State’s concession in respect of Ground 1 was sufficient to dispose of the appeal. Although he submitted there may be some facts capable of preservation such that the appeal could be retained in the Upper Tribunal, otherwise he accepted the matter should be remitted to the First-tier Tribunal. He confirmed that all issues relied on in the appellant’s skeleton argument before the First Tier would still be relied upon at the re-making. That is, the appellant pursues his appeal in relation to his claim for asylum, humanitarian protection and under Articles 3 and 8 of the ECHR.
Errors of Law
9. We agree that the concessions by the Respondent in respect of Ground 1 were properly made. We say that for the following reasons.
10. We framed the appellant’s contention at Ground 1 in general terms in the last sentence of [5] above, which is really a rationality challenge. In broad terms it is this point that is perhaps the most pertinent error here. In the lengthy decision, the judge reflects upon the various factors raised both for and against the appellant’s claim, particularly in relation to his situation on return to Mogadishu (see in particular [30]-[32], [37]-[56]). But in so doing, although the judge has at times fallen short of actually making findings on those factors, there are some she appeared to accept (see for example [37] regarding family support); in others, she made such findings but then appears to reflect upon or observe other matters which contradict those findings; she did not approach the evaluation in a structured way; did not follow the country guidance approach to the risk on return to Mogadishu as set out at [407h] MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). For these reasons, it is hard to reconcile or understand the basis on which the judge finds at the end of her decision [57] that the appellant does not engage the Refugee Convention, the Directive on Humanitarian Protection or any Article of the ECHR and the judge has not drawn together the various strands of her analysis in order to explain her ultimate conclusion.
11. By way of illustration, at [57] the judge finds that the appellant will not be at risk on return to Somalia either specifically on generally. However, this finding is inconsistent with other factors about the appellant which the judge appeared to accept or about which she made no clear findings and which would support a risk on return, taking into account the Country Guidance. For example, the judge notes the respondent’s concession that the appellant was a member of a minority clan [14]; she noted the appellant’s claim that there was lengthy absence from Somalia [29] (although fell short of making a finding on the point); she noted there was no evidence the appellant had contact with his family in Somalia or that he was in contact with the diaspora, [37]; she noted there was no evidence that he had made contact with clan members or could do so [38], but at [40] made contradictory findings that it was likely the appellant would have a means of clan support; she noted it is objectively difficult for the population to find accommodation [44] and that the humanitarian and security situation remains precarious [50], [51], and [56].
12. By way of further illustration, as Ms Ahmed accepted in her oral submissions, the judge mischaracterised the country guidance as to the significance of clan support when she said at [40] that clan support is not something upon which upon which people are so dependent. The judge’s onward assessment of the likelihood of clan support is contradictory (see [38] and [40]) and that then feeds into the judge’s assessment of what the appellant may be able to do on return (see [55]).
13. As a final example, the judge made specific findings at [45] and [48] that the appellant, as a young single male, is at risk of being recruited by or suspected of joining Al Shabab. However, at [40] she makes contradictory findings that there is no specific risk to the appellant on return. Her explanation of how he could mitigate that risk at [55] is infected by her approach to the availability of clan support. The judge’s evaluation of what the appellant ‘may’ be able to undertake on return such as translation [52] contradicts her observations about limitation to his English language skills, particularly writing.
14. We find therefore that the decision that there was no risk to the appellant on return to Somalia was based on a series of incomplete, contradictory and inadequately reasoned findings. We do not find the judge to have adhered to the approach commended in headnote (1) of Azizi (Succinct credibility findings; lies) [2024] UKUT 65 (IAC) which says:
“A determination in relation to an appeal must deal with the principal controversial issues presented to the judge, and it may be possible in some circumstances to provide adequate reasons in relation to those issues succinctly, provided they deal with the points raised by the party and enable the parties to understand why the decision has been reached.”
15. As a consequence, we agree with the parties that the judge’s final conclusions were irrational. As such, we find that the concession made on behalf of the respondent was rightly made and find Ground 1 to disclose a material error of law.
16. As Mr. Winter agreed that the respondent’s concession on Ground 1 was sufficient to dispose of the appeal and justify it being set aside, we did not need to consider Ground 2.
Disposal
17. We have set out the parties’ position on disposal above. We have considered this matter carefully as there are some findings which, on their face, are favourable to the appellant and in isolation are not infected by the errors identified by Ground 1.
18. In arriving at our decision on this issue we had regard to the principles set out in AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 268 (IAC).
19. However, in light of the unsatisfactory nature of the fact-finding, the interrelationship between the various component parts of the appellant’s claim about his personal circumstances and his risk on return to Mogadishu and his ability to establish himself there, we are satisfied that any findings made are infected by error and therefore no findings should be preserved. Nevertheless, there were of course certain matters not in dispute, most significantly that the appellant is a member of a minority clan.
20. For these reasons and applying the principles set out in the Practice Direction and the guidance given in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), there are no preserved findings, so the appeal is to be remitted to the First-tier Tribunal.
Notice of Decision
1. The decision of the First-tier Tribunal contains an error on a point of law and is set aside.
2. The appeal is remitted to the First-tier Tribunal to be heard by a different judge.

Martha Walsh
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 March 2025