MOJ and Others (Return to Mogadishu)

 
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[2014] UKUT 442 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

The President, The Hon. Mr Justice McCloskey

Upper Tribunal Judge Storey

Upper Tribunal Judge Southern

Between
MOJ, MAA and SSM
Appellants
and
The Secretary of State for the Home Department (Anonymity order made)
Respondent
Representation:

For the Appellant MOJ: Mr M. Gill QC and Mr A. Pretzell (of Counsel), instructed by Duncan Lewis and Company, Solicitors

For the Appellant MAA: Ms S. Panagiotopoulou (of Counsel), instructed by Trott and Gentry LLP

For the Appellant SSM: Mr R. Toal and Ms G Loughran (both of Counsel), instructed by Wilson Solicitors LLP

For the Respondent: Mr B. Rawat (of Counsel), instructed by the Treasury Solicitor and Mr I. Jarvis (Senior Home Office Presenting Officer)

MOJ & Ors (Return to Mogadishu) Somalia CG

LEGAL GUIDANCE
  • (i) The operation of the Upper Tribunal Immigration and Asylum Chamber Guidance Note no. 2 of 2011, “Reporting Decisions of the Upper Tribunal Immigration and Asylum Chamber” and, particularly, [11] thereof, does not render the process of composition of country guidance decisions procedurally unfair.

  • (ii) As a general principle, where attendance of an appellant is a prerequisite to the vindication of the person's right to a fair hearing, the appellant must be present.

COUNTRY GUIDANCE
  • (i) The country guidance issues addressed in this determination are not identical to those engaged with by the Tribunal in AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC). Therefore, where country guidance has been given by the Tribunal in AMM in respect of issues not addressed in this determination then the guidance provided by AMM shall continue to have effect.

  • (ii) Generally, a person who is “an ordinary civilian” (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 3 of the ECHR or Article 15(c) of the Qualification Directive. In particular, he will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country.

  • (iii) There has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city. That was not the case at the time of the country guidance given by the Tribunal in AMM.

  • (iv) The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered as a whole that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab's resort to asymmetrical warfare on carefully selected targets. The present level of casualties does not amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk.

  • (v) It is open to an ordinary citizen of Mogadishu to reduce further still his personal exposure to the risk of “collateral damage” in being caught up in an Al Shabaab attack that was not targeted at him by avoiding areas and establishments that are clearly identifiable as likely Al Shabaab targets, and it is not unreasonable for him to do so.

  • (vi) There is no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including for recent returnees from the West.

  • (vii) A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer.

  • (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.

  • (ix) If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:

    • circumstances in Mogadishu before departure;

    • length of absence from Mogadishu;

    • family or clan associations to call upon in Mogadishu;

    • access to financial resources;

    • prospects of securing a livelihood, whether that be employment or self employment;

    • availability of remittances from abroad;

    • means of support during the time spent in the United Kingdom;

    • why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.

  • (x) Put another way, it will be for the person facing return to explain why he would not be able to access the economic opportunities that have been produced by the economic boom, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away.

  • (xi) It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms.

  • (xii) The evidence indicates clearly that it is not simply those who originate from Mogadishu that may now generally return to live in the city without being subjected to an Article 15(c) risk or facing a real risk of destitution. On the other hand, relocation in Mogadishu for a person of a minority clan with no former links to the city, no access to funds and no other form of clan, family or social support is unlikely to be realistic as, in the absence of means to establish a home and some form of ongoing financial support there will be a real risk of having no alternative but to live in makeshift accommodation within an IDP camp where there is a real possibility of having to live in conditions that will fall below acceptable humanitarian standards.

DETERMINATION AND REASONS

INDEX

Paragraph number

Introduction

1

Anonymity

2

Right to attend a hearing

5

Country Guidance Judgments

8

Duties of expert witnesses

23

Legal Framework

29

The law relating to Art 15(c) of the Qualification Directive

30

Law relating to Article 3 of the ECHR

34

Review of case law concerning Somalia

35

The Evidence

Introduction

44

Introductory comments concerning the expert evidence

46

Dr Mullen's evidence

47

Dr Hoehne's evidence

106

Ms Harper's evidence

161

The submissions of the parties:

202

On behalf of the respondent

203

On behalf of MOJ

240

On behalf of MAA

263

On behalf of SSM

289

Conclusions:

333

Significance of Clan membership

337

The “Economic Boom”

344

Population Movements

353

Sufficiency of Protection

355

Al Shabaab

366

Level of civilian casualties

376

Avoiding or reducing risk

387

Forced recruitment to Al Shabaab

395

Assessment of the level of risk

397

IDPs

409

Mogadishu as a destination for relocation

424

Determination of the individual appeals

MOJ

426

MAA

453

SSM

467

Appendix A/B: Schedule of documentary evidence

Page 215

Appendix C: Summary of written expert evidence

Page 262

Appendix D: Error of Law decisions

Page 273

1

In this determination, to which each member of the panel has made a contribution, the Upper Tribunal addresses the current situation in Mogadishu in order to determine the individual appeals and to give guidance limited to the following issues:

Whether the current situation in Mogadishu is such as to entitle nationals of Somalia whose home area is Mogadishu or whose proposed area of relocation is Mogadishu to succeed in their claims for refugee status, humanitarian protection status under Article 15(c) or protection against refoulment under Articles 3 or 2 of the ECHR solely on the basis that they are civilians and do not have powerful actors in a position to afford them adequate protection.

2

We should make clear, at the outset, that the Tribunal has made an order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 the effect of which is that nothing is to be published that may lead to the identification of any of the appellants or any person who has contributed to the evidence submitted by the parties other than those whose names are disclosed in this determination.

3

These appeals come before us because in each case the decision of the First-tier Tribunal has been found to disclose legal error such as to require it to be set aside and remade by the Upper Tribunal. The decisions of the Upper Tribunal identifying those errors of law are reproduced in Annex D but for present purposes the position can be summarised as follows:

There...

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