Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
Case No: UI-2024-005891
IMMIGRATION AND ASYLUM CHAMBER

First-tier Tribunal No: RP/50088/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

19th May 2025

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE PICKERING

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ABDILAHI ESSA DARWISH
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Rushforth, a Senior Home Office Presenting Officer.
For the Respondent: Ms Chapman, instructed by Wilson Solicitors LLP.

Heard at Phoenix House (Bradford) on 28 April 2025

DECISION AND REASONS
1. Both members of the panel have contributed to this decision.
2. The Secretary of State appeals with permission the decision of a judge of the First-tier Tribunal (‘the Judge’) promulgated following a hearing at Taylor House on 22 October 2024, in which the Judge allowed the above Respondent’s appeal.
3. Permission was granted on a renewed application by the Upper Tribunal on 20 February 2025, the operative part of the grant being in the following terms:
The Secretary of State seeks permission to appeal against the decision of [the Judge], who allowed the appellant’s appeal against the respondent’s revocation of his protection status. There are two grounds of appeal: (i) that the judge failed to identify a Refugee Convention reason which continued to apply; and (ii) that the judge failed to give proper reasons for allowing the appeal on Article 3 ECHR grounds. [ Another Judge] refused permission at first instance.
The first ground is clearly arguable. The issues were identified in the Appeal Skeleton Argument and the respondent’s Review and it is clear that there was a dispute between the parties as to whether there was a Convention reason. Whilst the appellant submitted that those suffering from mental illness in Somalia constitute a PSG, that was actively contested by the respondent at [12] of the Review. Whilst the judge was seemingly aware that this was an issue between the parties (the judge’s [38] refers), it is arguable that he did not address it adequately or at all.
I am not sure that I follow the point made in the respondent’s second ground. The judge did not allow the appeal on standalone Article 3 ECHR grounds, and no such ground of appeal was available in a case of this nature in any event: s84(3) NIAA 2002 refers. Whilst I make no direction limiting the arguments which may be pursued (EH (Bangladesh) [2021] UKUT 117 (IAC), I cannot for my own part see any merit in this ground.
4. The appeal is opposed in a Rule 24 response drafted by Ms Chapman, dated 12 March 2025, the operative part of which reads:
1. The Respondent is a national of Somalia, born on 3.8.83. He came to the UK on 30 June 2001 and claimed asylum on 16 August 2001 on the basis that he had a well-founded fear of persecution on the basis of his membership of the Shanshiya sub-clan of the minority Reer Hamar clan, from Afgoy, south Somalia. His asylum application was refused on 2 August 2001 and he appealed against that decision. At the appeal the SSHD conceded that the Appellant was a refugee because of his minority clan membership and on 19 September 2002 he was granted ILR as a refugee.
2. Thereafter, the Appellant committed an offence of possession of a bladed article and affray in respect of which he pleaded guilty and was sentenced to 12 months imprisonment to run concurrently, concern being expressed by the sentencing Judge as to the Appellant’s mental health. Thereafter the SSHD made a decision to deport the Appellant to Somalia and to revoke his refugee status and this was done on 5 January 2021 and the deportation order was made on 9 February 2021. The Appellant was at that time unrepresented, however, he commenced medication for his mental health condition in June 2021 and subsequently instructed his current solicitors, who filed an out of time appeal.
3. The appeal came before [the Judge] for hearing on 22 October 2024. In a decision and reasons dated 15 November 2024 he allowed the appeal.
4 The SSHD sought permission to appeal which was refused by [another judge]. A renewed application for permission to appeal was made, in time, on 27 December 2024 on the basis that:
4.1. In allowing the appeal the FtTJ failed to establish a Convention reason for which the Appellant would suffer persecution on return to Somalia, given that the circumstances under which he was granted refugee status in 2002, as being part of a minority clan, ceased to exist following MOJ. It was asserted that the FtTJ failed to properly consider the facts in establishing that the Appellant still falls within a Convention reason, nor alternatively whether he qualifies for consideration under HP and would face a real risk of suffering serious harm with reference to the 4 factors set out in OA;
4.2. The FtTJ failed to properly assess the extent of the Appellant’s mental illness in line with the threshold and test in AM (Zimbabwe) [2020] in establishing whether his mental illness would be a barrier to internal relocation on return to Somalia under article 3 (medical grounds).
5. Permission to appeal was granted by [the Upper Tribunal] in a decision dated 20 February 2025 in the following terms …………
6. At [37](c) and (d) the FtTJ found that the Appellant had been accepted as a refugee who was not from Mogadishu and the Country Guidance says there is a real risk of persecution in the Appellant’s home area of Somalia. At [38](a) he held:
“(a) would relocation of the Appellant (sic) Mogadishu be reasonable? If not, he remains a refugee and his appeal succeeds.”
7. It is clear that this was a route that was open to the FtTJ and led to sustainable findings in light of the following:
7.1. The SSHD conceded on 20 August 2002 that the Respondent was a refugee on the basis of his minority clan membership {ASA at [7]];
7.2. In the CG decision in NM (Lone women – Ashraf) Somalia CG [2005] UKIAT 00076 at [117] which remains on the list of CG decisions, the UT held that: “The starting point is that male and female members of minority clans from the south will, in general, be at risk of breaches of their article 3 rights, and will be refugees, in the absence of evidence that they have a clan or personal patron and the means to access that area of safety without a real risk.”
7.3. Whilst subsequent CG decisions, most notably OA (Somalia) CG [2022] UKUT 00033 (IAC) show that minority clan members are no longer ipso facto at risk of being persecuted in Mogadishu, there is no country guidance indicating that the position in Southern Somalia i.e. outside of Mogadishu has altered.
7.4. Consequently, given that the Respondent is from Afgoye, South Somalia, the starting point is that the Respondent continues to have a well-founded fear of persecution in his home area and thus the issue, correctly identified by the FtTJ above at [37] and [38] is one of internal relocation.
7.5. There is no challenge by the SSHD to the FtTJ’s assessment of internal relocation, applying the CG decision in OA (op cit) which he did in detail at [46]-[51]. Nor is there any challenge to the FtTJ’s conclusions at [67]-[80] culminating at [81}: “As a result, my overall assessment is that internal relocation of the Appellant to Mogadishu is, in the Appellant’s circumstances, unreasonable and would be unduly harsh. Therefore notwithstanding the durable change of the situation in Mogadishu the Appellant remains a refugee.”
7.6. It is submitted that the FtTJ’s unchallenged findings were open to him on the evidence. It is clear that the Refugee Convention reason remains a fear of persecution on the basis of a particular social group viz the Respondent’s minority clan membership of the Shanshiya sub-clan of the Reer Hamar.
8. It follows that, having found the Respondent remained a refugee for the same reasons as were accepted in 2002, there was no need for the FtTJ to go on to consider the alternative arguments which he set out at [38}(b):
“(b) If so (i.e. relocation to Mogadishu would be reasonable) whether the Appellant has well-founded fear of being persecuted in Somalia owing to his mental illness and his membership of the particular social group of those suffering from mental illness.”
9.1. The same applies in respect of the third alternative argument:
“(c) Whether removal of the Appellant to Somalia would breach article 3 rights owing to the intense suffering that would result from the combined and mutually reinforcing effects of his mental illness and the risk of destitution. “
9.2. In light of the fact that the FtTJ had determined the first argument in the Respondent’s favour, there was no need for him to go on to consider the third argument and it follows there is no substance in the second ground of appeal.
10. There are no material errors of law in the decision and reasons of the First tier Tribunal Judge and consequently, the Upper Tribunal is invited to uphold it.
5. Ms Chapman repeated the core of her arguments in her skeleton argument dated 23 April 2025.
6. At the start of the hearing we indicated to the advocates that in light of the unchallenged findings of the Judge our preliminary view was that the Secretary of State had failed to establish material legal error in the decision sufficient to warrant the appeal being allowed.
7. Having had time to consider the skeleton argument and pleadings as a whole Ms Rushforth accepted, whilst not conceding the appeal, that the unchallenged findings entitled the above Respondent to succeed in challenging the application for the reason set out in the Rule 24 reply and skeleton argument. We agree.
Notice of Decision
7. The First-tier Tribunal has not been shown to have materially erred in law.
8. The determination shall stand.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2025