United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2025-000289
	First-tier Tribunal No: RP/00145/2017

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 1 ^st of April 2025

Before

 

UPPER TRIBUNAL JUDGE KAMARA

DEPUTY UPPER TRIBUNAL JUDGE JOSHI

 

Between

 

AI

(ANONYMITY ORDER MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Mr R Toal, counsel instructed by Wilsons Solicitors LLP

For the Respondent: Mrs S Nwachuku, Senior Home Office Presenting Officer

 

Heard at Field House on 25 March 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

Introduction

1.        The appellant has been granted permission to appeal the decision of the First-tier Tribunal dismissing his protection appeal following a hearing which took place on 25 November 2024.

Anonymity

2.        An anonymity direction was made previously and is maintained because this appeal concerns a protection claim by a vulnerable appellant.

Factual Background

3.        The appellant is a national of Somalia now aged in his forties who arrived in the United Kingdom in 1993 as a child with family members. He was granted exceptional leave to remain in line with his mother and sibling and ultimately, granted indefinite leave to remain and recognised as a refugee, in 1998. Owing to the appellant's criminal convictions, a decision to make a deportation order was made in 2006 and as the appellant did not appeal, it was signed the same year. An application was made to revoke the said order and a decision was taken not to pursue deportation in 2013. Owing to further offending, a further decision to deport the appellant was made in 2015. On 3 November 2017 a further deportation order was signed and a decision was made to withdraw the appellant's refugee status. The present appeal is against this decision.

The decision of the First-tier Tribunal

4.        At the hearing before the First-tier Tribunal, owing to his mental health condition, the appellant was treated as a vulnerable witness. The respondent conceded that the appellant was of Brava ethnicity and had been granted indefinite leave to remain prior to the deportation order being made. The issues remaining in dispute were whether the appellant was able to displace the presumption under section 72 of the 2002 Act; and if so whether he had a well-founded fear of persecution owing to his ethnicity and/or membership of a particular social group and whether the change of conditions in Somalia justified the revocation of his refugee status. In addition, if the appellant was unable to rebut the section 72 presumption whether his removal would breach Article 3 of the ECHR based on his mental health and/or the living conditions to which he would be subject in Somalia. The last issue concerned whether there were very compelling circumstances which outweighed the public interest in his deportation.

5.        The judge was satisfied that the appellant had rebutted the presumption for reasons set out at [20-36] of the decision and proceeded to consider his case under the Refugee Convention if he were returned to Mogadishu. Based on his consideration of an expert report, the judge concluded that there was no evidence of a risk to the appellant based on his ethnic origins [38-44]. The judge recorded that the respondent accepted that the appellant was a member of a particular social group in Somalia on account of his mental illness but concluded there was no evidence of ill-treatment of the mentally unwell that reached the level of persecution [46-51]. The judge found that the respondent was entitled to revoke the appellant's refugee status, based on the conclusions reached in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) and OA (Somalia) CG [2022] UKUT 33 (IAC) [51-57].

6.        In allowing the appellant's Article 3 health claim, the judge was satisfied that the appellant established a prima facie case that he would suffer a serious, rapid and irreversible decline in his health resulting in intense suffering and was not satisfied that the respondent had dispelled the doubts raised by the appellant [83-114]. The judge was further satisfied that the living conditions to which the appellant would be subject would amount to inhuman and degrading treatment such as to amount to a breach of Article 3 [115-122].

7.        The same circumstances were considered by the judge, along with the appellant's close family ties with his mother and children and were found to amount to very compelling circumstances which outweighed the public interest in his deportation [123-149]. The judge allowed the appeal on Article 3 (medical and living conditions grounds) and Article 8 (private life) grounds.

The appeal to the Upper Tribunal

8.        There are two grounds of appeal against the decision to dismiss the appeal under the Refugee Convention. Firstly, it was argued that the judge erred by failing to decide the appellant's claim that he had a well-founded fear of persecution in his home area owing to his minority clan membership and if so whether it was reasonable to expect him to internally relocate to Mogadishu. Secondly, it was contended that the judge erred in failing to conclude that evidence adduced of the ill-treatment of the mentally unwell in the form of 'arbitrary detention, chaining, verbal and physical abuse' was not accepted as being of sufficient gravity to amount to persecution.

9.        Permission to appeal was said to have been granted on the basis sought in ground one, with the judge granting permission saying there was no arguable error of law in relation to the second ground. Nonetheless, the grant of permission was not restricted.

10.    The respondent filed no Rule 24 response.

The error of law hearing

11.    The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. A bundle was submitted by the appellant containing, inter alia, the core documents in the appeal, including the appellant's and respondent's bundles before the First-tier Tribunal.

12.    The hearing was attended by representatives for both parties as above. Both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary. Mr Toal withdrew the second ground of appeal. Otherwise, Mrs Nwachuku opposed the appeal. While she accepted that the judge did not refer to the appellant's home area, she argued that this was not material because the appellant was not going to be removed to his home area. She accepted that the appellant's case was clearly put in the appellant's skeleton argument before the First-tier Tribunal and that there were also no findings by the judge regarding the appellant relocating to Mogadishu. In relation to the Country Guidance case law, Mrs Nwachuku briefly stated that MOJ and others (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) included consideration of those who were being removed to Mogadishu and not just those whose home area it was and that NM and others (Lone Women - Ashraf) CG   [2005] UKIAT 00076 was about lone women.

13.    At the end of the error of law hearing, the panel informed the parties that the Upper Tribunal was satisfied that the First-tier Tribunal materially erred in failing to address the correct basis of the appellant's asylum claim and the issue of internal relocation to Mogadishu. Both parties were willing to immediately proceed to remaking. Mr Toal made succinct submissions in line with his skeleton argument before the First-tier Tribunal. Mrs Nwachuku simply acknowledged the difficulty she was in as the Secretary of State had elected not to appeal the favourable findings of the First-tier Tribunal. The panel informed the parties that the appellant's appeal was allowed, with reasons to follow.

Discussion

14.    The issues at large in the appellant's appeal were succinctly expressed in the skeleton argument which was before the First-tier Tribunal. For the purposes of the error of law discussion, the issue summarised at paragraph 1c. of the skeleton is relevant.

c. whether removal of the A from the UK would breach the UK's obligations under the refugee convention because:

i. he has a well founded fear of being persecuted in his home area;

ii. Mogadishu, the only proposed place of relocation, does not provide him with an internal relocation alternative because he would suffer inhuman treatment there and / or it would be unduly harsh or unreasonable for him to have to go there;

15.    By contrast, the judge's summary of the issues to be determined, set out at [15] made no reference to the appellant's fear of persecution in his home area nor of the reasonableness of internal relocation to Mogadishu.

16.    The basis of the appellant's case, as set out in paragraph 2b of the skeleton argument was that 'there is a real risk to him of being persecuted or treated in breach of article 3 in his home area, Brava on account of his minority clan membership.'

17.    The respondent accepted that the appellant was a member of the Bravanese minority group in her decision dated 13 June 2016 and in the decision letter dated 6 November 2017 it was further accepted that the appellant was born in Brava. It was further argued in the skeleton argument at paragraph 2c that Mogadishu did not provide an internal relocation alternative These facts and arguments were not considered by the judge.

18.    The judge based his decision on the risk to the appellant owing to his clan identity on the comments of an expert as to the risk to the appellant in Mogadishu as well as the conclusions in MOJ at headnote (viii).

The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assist with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence and no clan based discriminatory treatment, even for minority clan members

19.    At [44] the judge answers the question he posed as to whether the appellant's deportation would breach the Refugee Convention, without any reference to the appellant's home area.

I am satisfied that neither the expert evidence nor country guidance decisions disclose a risk to the appellant on account of his ethnicity if he is returned to Mogadishu, since this is where the respondent proposed to deport him, I find he is not at risk of persecution on account of his ethnic origin.

20.    The failure to determine all the issues in dispute is undoubtedly an error of law. It is plainly material owing to the judge's findings under Article 3 ECHR which addressed the anticipated outcome of the appellant's removal to Mogadishu.

21.    The judge's unchallenged findings include that the living conditions the appellant would be subject to on return to Somalia would amount to inhuman or degrading treatment in breach Article 3 of the ECHR [122]. Had the judge considered the issue of internal relocation to Mogadishu, it is difficult to see that he could have done anything other than allow the appeal under the Refugee Convention.

22.    In terms of the remaking of this appeal, we have had regard to the Country Guidance decision of NM where, at [117], the following is said about membership of a minority clan

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. Were such evidence to exist, which at present would be unusual, their return would involve no breach of either Convention.

23.    Mrs Nwachuku made no submission to the effect that NM should not be followed or that there had been a change of circumstances since that decision was promulgated. Furthermore, it has never been suggested by the respondent that the appellant has a clan or personal patron which would mean that he could return to his home area of Brava without a breach of his Article 3 rights. In these circumstances we have no hesitation in concluding that the appellant has demonstrated that he has a well-founded fear of persecution in his home area for a Refugee Convention reason. For the same reasons the judge found that it would amount to a breach of the appellant's Article 3 rights to be removed to Somalia, we find that it would also be unduly harsh to expect him to relocate. It follows that the removal of the appellant to Mogadishu would be in breach of the Refugee Convention.

Conclusions

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

We set aside the decision as far as it relates to the protection claim to be re-made.

We substitute a decision allowing the appeal on the basis that the appellant is a refugee.

 

Notice of Decision

The appeal is allowed on protection grounds.

 

T Kamara

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

27 March 2025

 

 

 

 

NOTIFICATION OF APPEAL RIGHTS

 

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal's decision was sent:

 

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

 

3. Where the person making the application is in detention under the Immigration Acts , the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

 

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

 

5. A "working day" means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

 

6. The date when the decision is "sent' is that appearing on the covering letter or covering email