Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004412

First-tier Tribunal No: PA/54933/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 22 April 2025

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

AKF
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Jebb, instructed by Brentnall Legal Limited
For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

Heard at Royal Courts of Justice (Belfast) on 10 April 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. The appellant appeals with permission against the decision of the First-tier Tribunal (“FtT”) promulgated on 29 July 2024, dismissing his appeal against the decision of the Secretary of Sate made on 21 July 2023 to refuse his asylum and protection claim.
2. The appellant is a citizen of Somalia who is married. He and his wife have two children aged 2 and 1 at the date of the appeal to the FtT. His case is that his father, brother and sister-in-law and their child were all murdered in the course of a property dispute and his only remaining relative, his mother, who lives in terrible circumstances in Galkayo in the north of Somalia. He is a member of the Jaaji clan; his wife is a member of the Asharaf clan, both of which are minority clans.
3. The Secretary of State accepted much of the appellant’s case. She accepted that he had encountered problems with an individual named Abdullahi Sanbuka and the organisation Al Shabaab but concluded that he did not fit the profile of being targeted by Al Shabaab and in any event Mogadishu, where he could reasonably relocate, is not an area under its control.
4. The FtT noted that the children are of an age when they will require constant care from either parent which is likely to limit the ability of both having to find work but this would allow one to provide childcare while the other works. Having directed himself in line with OA (Somalia) CG [2022] UKUT 33 the judge considered at [5] and [6] potential support from the appellant’s or his wife’s clan finding it unlikely that they had made remittances to Somalia in the past . He found that that opportunities for employment are likely to exist for the appellant and his wife, whether or not they have the support of their respective clans and that it is in the prevailing culture likely that such support would be forthcoming.
5. The FtT then considered the reports on the appellant’s physical and mental health by, respectively, Dr McGovern and Dr Gupta. He observed that Dr McGovern gave no indication as to whether the appellant’s symptoms were likely to resolve in time or in response to treatment, or whether any treatment or exercise is likely to be effective noting that the limitations on the appellant’s ability to undertake physical work did not mean he was unable to carry out any work and that it was reasonably likely he should be able to find work within his physical capabilities. The FtT noted also that the appellant did not appear to be taking any of treatments recommended by Dr Gupta other than taking sleeping tablets and attached limited weight to it when considering the appellant’s ability to work in the event of his return to Mogadishu. The FtT concluded:-
“Because of my finding in relation to the Appellant’s circumstances and state of health, I am not satisfied that return to Mogadishu exposes the Appellant to a real risk of persecution for a Convention reason or serious harm on the basis of the living conditions he is likely to encounter.”
6. The judge then considered whether the appellant’s illness was sufficient as then to engage Article 3 of the European Rights Convention concluding that it did not.
7. The appellant sought permission to appeal on the grounds that the judge had erred in failing properly to apply OA (Somalia) in particular in failing to have regard to the appellant’s physical and mental vulnerabilities in assessing the type of work that would be available to him given the findings in OA as to what type of work would be available. It is submitted further that the appellant is likely to be one of those cases envisaged in OA at paragraph 14.
8. On 17 October 2024 Upper Tribunal Judge Hirst granted permission on all grounds.
The Hearing
9. I heard submissions from Mr Jebb and Ms Blackburn. Mr Jebb submitted that paragraph 14 of the headnote in OA (Somalia). that it is a three part test with which the judge had not properly engaged. He had failed to consider whether the work that the appellant is able of doing is available. Given that he is unable to do hard labour, it led to the question what was he able to do. Further, with respect of the report from Dr Gupta, he said that from OA (Somalia) at [346] onwards that the relevant treatment was not available for PTSD.
10. Ms Blackburn submitted that the judge had dealt adequately with the remittance point and had had regard to the country guidance, referring to specific points. She accepted that he had not dealt in detail with the point on remittances with how to consider the availability of employment and had reached conclusions open to him. She submitted further that the ability of the appellant to find work was a matter in which the judge had given adequate reasons, having dealt with the report from the experts and formed an impression which was open to him that his disabilities could not have been that bad. She submitted again that the challenge to this was simply a disagreement and it was to be noted that the appellant was not engaging in medical treatment.
11. In response, Mr Jeb submitted that the failure to engage in medical treatment could not detract from the finding that the appellant could work. There was a danger in saying that someone should engage the treatment when he was not entitled to, unclear that it would have been available or that they were able to engage with it owing to their mental ill health.
12. I reserved my decision.
The Law
13. In assessing the grounds of appeal, I bear in mind and apply Ullah v SSHD [2024] EWCA Civ 201 at [26].
14. I also bear in mind what was held in Volpi v Volpi [2022] EWCA Civ 464 at [2] and in HA (Iraq) [2022] UKSC 22 at [72], and that the decision must be read sensibly and holistically. Justice requires that the reasons enable it to be apparent to the parties why one has won and the other has lost: English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at [16]. When reading the decision, I am entitled to assume that the reader is familiar with the issues involved and arguments advanced. Reasons for judgment will always be capable of having been better expressed and an appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
15. The core issue in this case is whether the judge has properly applied the guidance given in OA (Somalia). I accept that in OA (Somalia) at [14] of the headnote that there is three part test in assessing who is likely to face living in circumstances falling below what would be reasonable for internal relocation. Those items are cumulative. They are an absence of clan or family support, absence of remittances from abroad and no prospect of securing access to a livelihood on return. This must, however, be read in conjunction with paragraph 13 of the headnote.
16. The judge did direct himself properly in line with OA (Somalia). The judge did not, however, make any findings with respect to diaspora links as referred to in the headnote at [5] finding only that it is unlikely that they had made remittances as members of the diaspora. It is implicit also in the statement that “whether or not they have the support of their respective clans and that in the prevailing culture it is likely that such support would be forthcoming,” that the FtT found support would be available is clear. But, however, it is not necessarily a flaw given the finding that the appellant had opportunities for employment.
17. I consider that the judge’s findings that the appellant would be able to gain employment are flawed. He accepted what Dr McGovern had to say as the limitations as to the kind of physical work which the appellant could undertake and does not appear to have considered what work the appellant would have to undertake given that the references in OA (Somalia) to work that is available are in informal and physical labour. There is no sufficient basis in the evidence for concluding that the appellant would be able to find work.
18. Similarly, the judge’s conclusions as to reasons for attaching little weight to Dr Gupta’s conclusion as to the appellant’s ability to return to Somalia are not properly reasoned. Dr Gupta’s was not considering whether the risk to the appellant from Al Shabaab but rather as to the appellant’s mental health impacting on his ability to work.
19. In assessing the availability of assistance on return paragraph 6 of the headnote makes it evident that whether somebody has made remittances or not is a relevant factor and the judge has failed to explain why having concluded that they would not have been made, he still concluded that the support would be forthcoming.
20. Taking these two factors into account I consider that the judge has failed properly to give adequate reasons for concluding that the appellant and his family could relocate within Mogadishu. Accordingly, for these reasons, I set the decision aside.
21. I note also, although this does not form part of my reasoning, that the judge appears to have misdirected himself as to the applicable test. The headnote in OA (Somalia) makes it clear that the issue was whether it would be reasonable to relocate not whether the return would expose him to real life risk of persecution or serious harm on the basis of the living conditions he is likely to encounter.
22. In addition, it is of some concern that no one appears to have considered that the situation of a single man returning as in OA (Somalia) is very different from that from a man returning with a wife and two small children under the age of 3.
23. In the circumstances, there will need to be a further detailed fact finding exercise, and so it is appropriate to remit this appeal to the First-tier Tribunal for a fresh decision on all relevant matters.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. I remit the appeal to the First-tier Tribunal for it to make a fresh decision on all issues.

Signed Date: 15 April 2025

Jeremy K H Rintoul
Upper Tribunal Judge
Immigration and Asylum Chamber