Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2024-005613
First-tier Tribunal Number: PA/57711/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued
On 12 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

AM
(Anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Miss A Smith, Counsel
For the Respondent: Miss Cunha, Home Office Presenting Officer

DECISION AND REASONS

Heard at Field House on 27 February 2025

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 AM. 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 10 April 1991. He appeals against a decision of Judge of the First-tier Tribunal Scullion dated 27 September 2024 dismissing his appeal against a decision of the respondent dated 19 September 2023. That decision in turn refused the appellant’s application for international protection. The appellant left Somalia on 16 December 2014. He travelled to Italy, Finland and France (where he remained for three years) before arriving in the United Kingdom on 18 September 2021 by small boat. He claimed asylum the following day.

The Appellant’s Case

2. The appellant’s case is that he was abandoned by his natural parents as a baby but brought up by members of a majority clan, the Hawiye. He does not know which clan he belongs to and is therefore clanless which puts him at risk of persecution. He worked as a bus driver in Somalia and was involved in a traffic accident when the brakes failed on his bus. Three people all members of majority clans were killed in the ensuing crash. He fled the scene and was advised by his foster family to leave Somalia. They paid a substantial sum to enable him to do this. He fears a revenge killing from the families of the victims if he returns as being clanless he has no clan to protect him. He relies on a report from a country expert Markus Hoehne, dated 23 May 2024.

The Decision at First Instance

3. The judge accepted that the appellant was clanless, see [24] of the determination but found that the appellant’s account of the alleged bus accident that led to the deaths of three people and injury to others to lack credibility. This was due to an internal inconsistency about what caused the accident which the judge found went to the core of the claim. The judge wrote:

“In response to question 99 of his asylum interview the appellant stated that “I couldn’t catch the brake”. I find that this is internally inconsistent with paragraph 8 of his witness statement dated 27 April 2022 in which he stated that “The brakes stopped working”. Given the extremely grave consequences of the claimed accident, including the deaths of three people, I find that it is not credible for the appellant to have given such contradictory accounts of what caused the accident – the brakes being broken as opposed to not being able to find and apply (“catch”) the brakes.”

4. The judge also found that the delay in claiming asylum in other European countries undermined the credibility of the claim, see [19]. The judge found that the appellant spent time in France but did not claim asylum there.

5. In relation to the issue of clanlessness, the judge held at [26] that the appellant had been brought up by members of the dominant majority Hawiye clan since he was one day old and had received their support and protection throughout his life. The judge cited MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 that “There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.”

6. At [29] the judge wrote “If the appellant’s account of the accident and deaths were true, I would find it improbable that the families of victims who had threatened to kill the appellant would not contact his family again to even ask about his whereabouts in the ten years following their one and only visit to his family.” The judge dismissed the appeal.

The Onward Appeal

7. The appellant appealed this decision on three main grounds. Ground 1 argued that the Judge incorrectly applied the guidance on being a member of a minority clan from the Country Guidance cases of MOJ and OA (Somalia) Somalia CG [2022] UKUT 00033 (IAC) to the assessment of risk on return for an appellant who is ‘clanless’. The judge failed to take the country expert evidence on clanlessness into account in assessing risk on return. Clanlessness put the appellant at considerable risk. It meant that the appellant could not “rely on stable and comprehensive support including protection against risks in a volatile place like Mogadishu.”

8. Ground 2 argued that by considering Section 8 of the 2004 Act at the outset of the judge’s assessment of credibility made at [15 – 20] the Judge had unlawfully and irrationally adopted the wrong approach and failed to apply the guidance in JT (Cameroon) v SSHD [2008] EWCA Civ 878. The appellant had said that he did not receive a decision in his asylum claim in France because the French authorities would not process his asylum claim without him giving them his birth certificate. The judge had wrongly disbelieved this.

9. Ground 3 argued that the Judge irrationally and without giving any or any adequate reasons rejected the appellant’s account of the bus accident in Somalia on the basis of a single difference in phrasing between his asylum witness statement and his asylum interview. The judge failed to take into account inevitable differences in interpretation by different interpreters on separate occasions.

10. The First-tier refused permission to appeal but Upper Tribunal Judge O’Brien granted permission to appeal writing:

“Given the apparent ambiguity in the meaning of the phrase used by the appellant in interview [concerning the brakes on the bus], it is arguable that the judge was unreasonable in rejecting [the appellant’s] explanation. … The judge found at [27] that there was ‘no credible evidence’ that membership of a minority clan or no clan at all would place an individual at risk of discrimination let alone persecution in Mogadishu. The judge appears to have accepted the expertise of Marcus Hoehne, and gives weight to his report [21]. However, the grounds (para 5) assert that that report suggested being clanless placed the appellant at considerable risk. It is arguable that the judge failed adequately to explain why that view was rejected or alternatively overlooked … The criticisms of the judge’s approach to s8 are of less obvious merit. “

The Hearing Before Me

11. In consequence of the grant of permission the matter came before me to determine in the first place where there was a material error of law in the decision of the First-tier Tribunal such that it fell to be set aside. If there was then I would make directions on the rehearing of the appeal. If there was not the decision at first instance would stand.

12. For the appellant, counsel argued that the existing country guidance only referred to those with clan membership, it did not refer to those like the appellant who had no clan. The judge had accepted the expert’s expertise and had given weight to his report. The appellant was brought up by foster parents but that did not mean that he acquired their clan. In any event they would now be too old to look after him on his return as they would be in their 50s or 60s. The judge should have looked at the expert’s report rather than seeking to apply country guidance cases.

13. In relation to the second ground the judge gave primacy to the section 8 factors by setting them out at the beginning of his credibility findings. Section 8 did have to be taken into account but in the context of a global overall consideration. Section 8 did not require that it be treated as a starting point. The judge did just that.

14. As to ground 3, the judge had only found one alleged inconsistency in the appellant’s claim relating to a difference in wording or phrasing regarding the brakes on the bus. Otherwise the judge made it clear the appellant was internally consistent in his account. The judge placed too much weight on the difference of wording between question 99 and the witness statement. The phrase “I couldn’t catch the brake” in the asylum interview was an odd phrase to use. At this point I enquired whether anyone had listened to the recording of the interview if there was to be a challenge on the correctness of the translation but counsel said she did not know the answer to that.

15. The appellant had addressed this very minor difference in his witness statement made for the appeal. He had explained both times that the brakes did not work. If the judge had not rejected the appellant’s credibility on the basis of this difference in language the judge would have had to accept the appellant’s account which to the lower standard (as this was a pre NABA case) meant that the appeal would have succeeded. The judge’s approach was irrational.

16. In reply for the respondent, the presenting officer took the grounds in reverse order starting with ground three. The judge said at [22] that the appellant had the opportunity to read through the interview at the end but had not corrected any of the answers recorded at that time. The judge had in any event decided the case on an even if basis. Even if the judge was wrong about the discrepancy between what happened with the brakes, the appellant would still not be at risk see [24] where the judge had said the appellant was “from and would only be returned to Mogadishu. The reality on the ground was that Mogadishu was different to other areas of Somalia”. The appellant was not at risk for the reasons given by the judge at [31] where the judge said that even if there had been an accident the appellant would still be able to internally relocate within Mogadishu on return to Somalia. Even if the appellant was clanless, he could relocate in Mogadishu. There had been no contact with family members of the deceased persons since 2014 therefore even if at [22] and [23] of the determination the judge’s findings on discrepancy were wrong that would still be immaterial to the overall decision. Therefore there was no error shown by ground three.

17. As to ground 2 the judge had considered the reasons given by the appellant why he had not claimed asylum before coming to the United Kingdom but the judge found there was no valid reason given by the appellant why for example he had left Italy to go to Finland. The appellant had spent three years in France but did not claim asylum and there was no information about any attempted claim. If the appellant had been scared of return to Somalia he would have explained that he could not return in the countries he passed through but failure to do so added weight to the judge’s point under section 8, that credibility was undermined. In any event the appellant could still internally relocate. Clanless status did not put the appellant at risk.

18. As to ground l, the expert talked about Mogadishu being very stressful. The judge had agreed that it was not the place of the expert to give an opinion on credibility. The judge did not accept that family members of the deceased would pursue the appellant. Being without a clan would not put the appellant at risk. If there was no adverse interest in the appellant as the judge found, the risk to the appellant on return disappeared. The appellant had been supported by his foster family in Somalia and had obtained work. The country guidance stated that members of a minority clan would not be at risk because there was no clan violence. If there was no clan violence why would not having a clan put the appellant more at risk than being a member of a minority clan?

19. In conclusion counsel repeated the argument that the judge’s reliance on one issue to do with the brakes was an error of law. As to ground 2 it was not just about where in the determination the section 8 consideration was placed. The judge had wrongly placed significant weight on section 8. As to ground 1, counsel repeated that the judge had failed to take the expert’s evidence into account. There was ongoing violence in Somalia and being without a clan meant the appellant would be without protection in the wider sense. The expert had taken into account his knowledge of Somalia and had confined himself to addressing plausibility not credibility. The determination should be set aside and the appeal allowed.

Discussion and Findings

20. This is essentially a reasons based challenge to an otherwise carefully written determination. The appellant states that he is without a clan and is therefore at risk upon return to Somalia in any event. However he adds that the risk is heightened because he was involved in a traffic accident when the brakes on his bus failed resulting in the death of three persons whose families would still seek revenge against him 10 years later. The appellant relies on an expert’s report because there is apparently no existing country guidance about the risk to persons who have no clan. The appellant argues that the judge should have relied on the expert’s report (that being without a clan puts the appellant at risk in any event) to fill in the gap.

21. The appellant also attacks the judge’s credibility finding that there was in fact no traffic accident and the appellant had made up that part of the story. The appellant’s argument is that the judge’s finding was irrational. In ground 2 there is a rather technical argument that the judge has given primacy to section 8 factors contrary to existing authority. That particular argument was described by the Upper Tribunal when granting permission to appeal as lacking obvious merit although permission was in any event granted on all grounds. The respondent’s counter argument (put orally as there was no Rule 24 response) is that the judge has dealt with this case on a series of “even if” bases.

22. . It is something of a novel point to say that although there may be no clan-based violence in Mogadishu there is nevertheless a risk to persons who are without clan membership. It is difficult to see why being without a clan is any more dangerous than being a member of a minority clan. The judge evidently considered that to be the case and applied the existing country guidance to both situations, membership of a minority clan and no clan membership. The expert’s view appears to be that there is a generalised threat of violence in Mogadishu in particular but that is not what the country guidance says as shown by the judge. The expert was not able to give any tangible reasons why clanlessness was inherently more dangerous than minority clan membership. What the expert found put the appellant at risk was the threat arising from the claimed bus accident but that depended on there being a bus accident in the first place a claim which the judge rejected.

23. The judge was not obliged to accept the expert’s opinion provided the judge gave sufficient reasons why he was not following it. The relative lack of violence in Mogadishu as found in the CG cases as opposed to the expert’s view of continuing instability is a case in point. The judge was not obliged in this case to automatically follow the expert’s view but could rely on the more authoritative analysis of country conditions in the CG cases.

24. It was not the case that the appellant would have no support in Mogadishu. The appellant was brought up by members of the majority clan who continued to support him through adulthood and paid a substantial sum of money to enable him to leave Somalia in 2014. Even if therefore he has no formal clan membership that he is aware of, he would not be returning to Somalia with no possibility of assistance. There appears to be no reason why his foster family would fail to assist him on return. It was suggested that the foster family might be too old to help the appellant but I was not referred to any evidence that supported this claim or given any information about the wider family (if any) the appellant might have in Mogadishu.

25. The judge found that there was no bus accident and thus no threat that anyone would come looking for vengeance from the appellant. That finding was criticised in the grounds because it was said to be predicated on a discrepancy between a difference in the mechanism of the accident given in the asylum interview and what the appellant subsequently said in his later witness statement. The judge placed great weight on this discrepancy, the argument of the appellant is that it is a minor difference if at all. The issues are whether the judge was wrong in law to find (a) there was a discrepancy and (b) if so that the discrepancy was central to the claim, given its importance in the appellant’s claim that he left Somalia because of the accident.

26. I remind myself that the judge had the benefit of seeing the witness give evidence. The appellant had had the opportunity to read through his interview record and had not raised at the time any suggestion that he may have been misunderstood. At [23] the judge explained why this discrepancy as to the cause of the accident was important and I find that the appellant’s objections to the judge’s characterisation of this discrepancy as important to be merely a disagreement with the judge’s findings. Such a disagreement is not indicative of a material error of law.

27. It is correct as the respondent submitted to me that the judge does go on to deal with the matter on an even if basis which is that even if there was an accident and people died, it was so many years ago and there had been so little interest in the appellant or his whereabouts since then that it was not possible to say that the appellant would be at risk of a revenge attack. Again that was a finding the judge was entitled to make on the basis of the material he had before him. The submissions of the appellant are, again, merely a disagreement with the judge’s findings on the point.

28. The judge found the appellant’s credibility to be undermined for the reasons he gave which included section 8 factors. The appellant had had ample opportunity to claim asylum in the various European countries he passed through if he felt he was at risk on return to Somalia but the judge found the appellant had not done that. Again that was a finding that was open to the judge on the evidence. The appellant had spent three years in France yet had not claimed. His explanation that the French insisted on a document before processing the claim was rejected by the judge for good reasons. The judge did not misapply section 8, the appellant’s argument on the point was weak. Overall the grounds of appeal are merely a disagreement with the findings of the judge. They do not demonstrate any material error of law in the determination and I dismiss the onward appeal.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error of law and uphold the decision to dismiss the Appellant’s appeal

Appellant’s appeal dismissed.

Signed this 4th day of March 2025

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