Aaw (Expert Evidence – Weight)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Southern |
| Judgment Date | 19 October 2015 |
| Neutral Citation | [2015] UKUT 673 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 19 October 2015 |
[2015] UKUT 673 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Upper Tribunal Judge Southern
For the Appellant: Mr A Gilbert, of counsel
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
AAW (expert evidence — weight) Somalia
A failure to comply with the Senior President's Practice Direction may affect the weight to be given to expert evidence. Any opinion offered that is unsupported by a demonstration of the objectivity and comprehensive review of material facts required of an expert witness is likely to be afforded little weight by the Tribunal. In particular, a witness who does not engage with material facts or issues that might detract from the view being expressed risks being regarded as an informed advocate for the case of one of the parties to the proceedings rather than an independent expert witness.
Permission having been granted to appeal against the determination of the First-tier Tribunal by which his appeal against a deportation order was dismissed, the appellant's appeal came before Upper Tribunal Judge O'Connor on 13 July 2015. By a decision dated 14 July, Judge O'Connor found that the First-tier Tribunal had made errors of law such as to require the determination to be set aside. His reasons for so finding are set out in the decision that is annexed hereto. Judge O'Connor said this about the circumstances leading to the decision to make a deportation order:
“The appellant has a lengthy history of criminal offending in the United Kingdom. He was convicted of common assault in 2002, two sexual assaults and common assault in 2010, a breach of a community order in 2010 and for both failure to surrender (having been released on bail) and destroying/damaging property in 2011.
Most significantly, however, the appellant was convicted on 27 October 2011 of wounding with intent (to cause grievous bodily harm) and sentenced to a term of six years' imprisonment. This led the Secretary of State to make a decision to deport him …”
It might be observed, also, that in his sentencing remarks the judge who passed that prison sentence said that if not for the prompt intervention of the medical services the appellant would have faced a murder charge. He went on to say:
“Time and again it is said by the courts that people who use knives in order to attack others must face substantial custodial sentences and by substantial I mean lengthy.
This was on any view a sustained attack. You were determined to mete out physical violence to (the victim). You armed yourself with a knife. You kicked the door of the living room open where he had retreated and, as I say, you plunged the knife twice into his body…”
For reasons that are not in dispute between the parties, it is not necessary to look any further into the determination of the First-tier Tribunal other than to say that their finding that section 72(2) of the Nationality, Immigration and Asylum Act 2002 applied in this case stands, so that the appellant cannot succeed in his appeal on asylum grounds. Therefore, as Mr Gilbert, realistically, does not pursue either any grounds founded upon rights protected by Article 8 of the ECHR we are concerned only with the question of whether, upon return to Mogadishu, the appellant would be subjected to ill-treatment or would find himself living in conditions such as to amount to an infringement of Article 3 of the ECHR.
The appellant, who is a citizen of Somalia, was born in 1974 and so is now about 40 years old. He lived with his parents and siblings in Mogadishu. They are of the Shanshiya clan, which is a sub clan of the Benadiri and so a minority clan. That was a matter of fact initially in dispute but Mr Jarvis does not now pursue that challenge and so the appellant is to be considered to be of the clan he asserts. The appellant's father was a merchant, selling shoes and some livestock. As the appellant confirmed in his oral evidence before us, the family had the patronage of a local Hawiye man as a result of which the appellant's father prospered in his business and the appellant was able to attend school. They owned and lived in their own house, which had six bedrooms.
Despite that patronage from a majority clan member, the appellant's family, like many others, felt unsafe as the civil war of the early 1990's took hold. They therefore left Mogadishu and moved to Marka on the south coast of Mogadishu, where the appellant's father rented a house and opened a new shop. Unfortunately, after two years or so, the fighting spread to Marka and so the family moved across the border into Kenya, where they lived in a refugee camp.
In 1996 the appellant's parents decided to return to Mogadishu taking the appellant and his siblings with them. He said that other relatives remained in the camp in Kenya. Despite the continuing violence being perpetrated in Somalia, and the precarious position, generally, of members of minority clans at that time in Somalia, the family was able to travel back to Mogadishu by bus. In oral evidence the appellant explained how this was possible, given that they were of a minority clan and on that basis at extreme risk when passing through the many militia controlled checkpoints they encountered on their journey. He said that the bus driver bribed his way through the checkpoints outside Mogadishu and, when asked about how they got through the checkpoints within Mogadishu, the appellant explained that:
“… the man who father trusted was waiting for us there.”
The appellant explained that when his father decided that they should return to Mogadishu, he contacted the man of the Hawiye clan, his connection with whom had enabled him to run his business and to own property in Mogadishu, and made with him certain arrangements. The family would return and this man had agreed to buy their house for $40,000. The appellant's father would then rent a house and start a new business. Unfortunately, when they arrived in Mogadishu they found that others from a majority clan had moved into their house and taken it over and so, for a few months, they stayed at the home of the man trusted by his father who had agreed to buy the house. After that man had secured vacant possession, the sale proceeded and so the appellant and his family moved into a rented house.
However, the appellant had described also that when he and his brother left Mogadishu in 2008, the family was then living “in an IDP camp” in Mogadishu. In oral evidence he explained that this was because “there was no peace”. That decision was certainly not driven by a shortage of funds because they had the proceeds of the sale of their house. It emerged in evidence that the “IDP camp” was a vacant government building, in which the appellant's parents remained resident after their two sons had departed. Each son received from their parents the sum of $5,000 to fund their journey, their parents retaining for their own use the remaining $30,000.
The appellant, who was provided with a Danish passport by the agent, travelled to an airport to the north of Mogadishu from where he travelled by air to the United Kingdom. He claimed asylum, unsuccessfully, on arrival and again, in a false name in 2006. His detailed immigration and appeal history is well known to the parties and it is not necessary to rehearse it here.
It is Mr Gilbert's submission that the appellant should succeed in his appeal on the basis that he falls with the category of persons identified in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) as being entitled to international protection in that the appellant will be returning with no clan or family support; not in receipt of remittances from abroad and with no real prospect of securing access to a livelihood on return. This is because the appellant's minority clan will not be able to assist him and without clan or family support he will be unable to find work and so will find himself destitute and living in an IDP camp in conditions that will fall below what is permissible in terms of the protection provided by Article 3.
Bringing matters up to date, the appellant confirmed that his father died in 2001 after which his mother remained in the same building, described by him as “living in a refugee camp”. He kept in touch with his mother until her death in 2013. He said he lost his faith not long after he arrived in the United Kingdom and so he does not go to a mosque. His brother now lives in Birmingham. Last September the appellant told him that he had become an atheist. He said that his brother “did not like that” and has cut off all ties with him. In oral evidence the appellant said that he had continued to talk to his sister in law and that she was beginning to understand his position.
Finally, the appellant says that he would be at risk on return from a revenge attack, because the man he stabbed in committing the offence for which he has been imprisoned is also a Somali national and as news travels fast between the United Kingdom and Mogadishu this man's family would find out where is and would attack and possibly kill him.
In Mr Gilbert's submission, the appellant's difficulties on return will be exacerbated by other factors. He has a history of criminal offending, including sexual assault, a category of offence that offends social mores in Somalia. He has also a history of addiction to alcohol and, on that basis as well, he will attract severe censure and, as alcohol is illegal but available, this will also act as a barrier to securing accommodation and employment. Mr Gilbert has set out in his skeleton argument a detailed analysis of all of the risk factors he identifies and I have had careful regard to all that he has...
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