Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004694
First-tier Tribunal No: PA/55881/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

10th June 2026

Before

UPPER TRIBUNAL JUDGE LANE
DEPUTY UPPER TRIBUNAL JUDGE NEILSON

Between

IA
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr Shabbir
For the Respondent: Ms Karini, Senior Presenting Officer

Heard at Edinburgh on 20 May 2026

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 decision in this appeals falls to us to remake following the making of transfer order. Deputy Upper Tribunal Judge Lay, by a decision promulgated on 23 March 2026, set aside the decision of the First-tier Tribunal. The background to the appeal is summarised by Deputy Upper Tribunal Judge Lay at [3]:
… the Appellant is a Somali national from Galguduud whose asylum and human rights claims, submitted on 9 March 2022, were refused on 16 August 2023. He was accepted to be a member of a minority clan, the Tumaal. His past account – almost all of which was accepted by the FTJ – was that he had been targeted and captured twice by Al Shabaab militants in his home area including most recently in 2022, as had his brother, while his father had earlier been murdered by the group. The Appellant fled the country via Mogadishu and feared return to Somalia owing to the family history, as claimed.
The respondent’s application to withdraw her case
2. By a letter dated 15 May 2026, the respondent sought to withdraw her case in the appeal:
This appeal is currently listed for remaking on Wednesday 20th May. The Respondent has considered the EOL decision and the preserved findings within, along with the evidence in the supplementary bundle (22nd April 2026) in respect of internal relocation to Mogadishu. The Respondent considers that in line with the Country Guidance cases of MOJ & Ors (Return to Mogadishu) (CG) [2014] UKUT 442 (IAC) and OA (Somalia) (CG) [2022] UKUT 33 (IAC), it is likely that internal relocation will be unduly harsh for the Appellant and there is a real risk of serious harm, risking a breach of Article 3 ECHR. In light of the above, the Secretary of State wishes to request the permission of the Upper Tribunal to withdraw her decision dated 16th August 2023.
The Secretary of State requests the permission of the Upper Tribunal to vacate the hearing from the list, and withdraw this case from the appeals system, in order that Humanitarian Protection can be granted to the Appellant.
3. The Tribunal Procedure (Upper Tribunal) Rules 2008, paragraph 17 provides:
17.—(1) Subject to paragraph (2), a party may give notice of the withdrawal of its case, or any part of it—
(a) by sending or delivering to the Upper Tribunal a written notice of withdrawal; or
(b) orally at a hearing.
(2) Notice of withdrawal will not take effect unless the Upper Tribunal consents to the withdrawal except in relation to an application for permission to appeal.
The submissions of the parties
4. Mr Shabbir, who appeared for the appellant, objected to the withdrawal of the respondent’s case on the basis indicated in the respondent’s letter (that is, a grant to the appellant of humanitarian protection, rather than refugee status) He submitted that, as a consequence of the respondent conceding that it would unduly harsh for the appellant to relocate to Mogadishu, the appellant’s appeal on asylum grounds should be allowed and that the appellant should not be granted humanitarian protection only. He submitted that section 35 of the Nationality and Borders Act 2022 provides for any decision maker to have regard to the personal circumstances of an asylum seeker when determining whether relocation would be unduly harsh:
35 Article 1(A)(2): internal relocation
(1) An asylum seeker is not to be taken to be a refugee for the purposes of Article 1(A)(2) of the Refugee Convention if—
(a) they would not have a well-founded fear of being persecuted in a part of their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence), and
(b) they can reasonably be expected to travel to and remain in that part of the country.
(2) In considering whether an asylum seeker can reasonably be expected to travel to and remain in a part of a country, a decision-maker—
(a) must have regard to—
(i) the general circumstances prevailing in that part of the country, and
(ii) the personal circumstances of the asylum seeker;
(b) must disregard any technical obstacles relating to travel to that part of that country.
[our emphasis]
The section codifies jurisprudence concerning internal flight contained in the leading authorities Januzi [2006] UKHL 5 and AH (Sudan) [2007] UKHL 49. In Mr Shabbir’s submission it follows that, because the appellant would be at real risk in his home area on account of a Convention reason, whether he could reasonably be expected to relocate to Mogadishu depended in part on his personal circumstances which, in turn, would include his mental health condition. That condition (and the First-tier Tribunal’ failure to deal with adequately) was addressed by Deputy Upper Tribunal Judge Lay at [18]:
In this Appellant’s case, evaluation of the circumstances and evidence relevant to internal relocation included the expert medical evidence which found that the Appellant continued to suffer from Post-Traumatic Stress Disorder and Major Depression [CB: 138], at least partly caused by his past experience in Somalia; and, further, that any return to Somalia would “very likely exacerbate his PTSD symptoms as well as precipitate a full-blown depressive relapse” [CB: 142]. These conclusions are all the more striking in light of the FTJ’s acceptance of the past account and yet there is no consideration of them in the determination.
5. Ms Karini, for the Secretary of State, submitted that, but for his mental health difficulties, it would not be unduly harsh for the appellant to relocate to Mogadishu, where he would be safe from any real risk arising in his home area on account of his clan membership (i.e. the basis of his Refugee Convention claim and appeal). She submitted that the appellant should, therefore, be entitled to humanitarian protection but not refugee status.
Discussion
6. We refused the Secretary of State’s application to withdraw her case. The withdrawal of the refusal decision of 16 August 2023 would not, in our opinion, have been in the interests of justice as it would have left the vulnerable appellant with further delay whilst a new decision (presumably refusing his asylum claim but granting him humanitarian protection) was issued and a fresh appeal brought in the First-tier Tribunal. Moreover, had we granted the application, the appellant would have been denied the opportunity to advance his case now for the refugee status to which, as we explain below, we find he is entitled. Indeed, Ms Karini did not press the application to withdraw but helpfully responded to Mr Shabbir’s submissions on asylum.
7. Ms Karini may be right to argue that, but for his mental health difficulties, it would be reasonable and not unduly harsh for the appellant to return to Somalia and live in Mogadishu. On the evidence, and applying the relevant country guidance, it would seem that the threat to the appellant in Mogadishu on account of his particular clan membership would not cross the threshold of real risk. However, we do not see how that argument should necessarily lead to the appellant receiving humanitarian protection and not a grant of refugee status. An asylum seeker’s ‘personal circumstances’ must include the state of his mental health and section 35 is clear that we must have regard to it in determining his appeal on asylum grounds; section 35 expressly refers to Article 1(A)(2) of the Refugee Convention. We do not find any rational basis for making the distinction between asylum and humanitarian protection for which the Secretary of State argues. Accordingly, we remake the decision allowing the appellant’s appeal on asylum grounds.
Notice of Decision
We have remade the decision. The appellant’s appeal against the decision of the Secretary of State dated 16 August 2023 is allowed on asylum grounds.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 20 May 2026