Msm (Journalists; Political Opinion; Risk)
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY,Upper Tribunal |
| Judgment Date | 04 June 2015 |
| Neutral Citation | [2015] UKUT 413 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 04 June 2015 |
[2015] UKUT 413 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The President, The Hon. Mr Justice McCloskey
Upper Tribunal Judge Dawson
Appellant: Mr S Chelvan and Ms V Hutton (both of Counsel), instructed by Duncan Lewis and Company Solicitors
Respondent: Ms DJ Rhee (of Counsel), instructed by the Treasury Solicitor
UNCHR (intervening): Ms M Demetriou QC, acting pro bono, instructed by Baker and McKenzie LLP
MSM (journalists; political opinion; risk) Somalia
[1] The enforced return of the Appellant, a journalist, from the United Kingdom to his country of origin, Somalia, would expose him to a real risk of persecution on the ground of actual or imputed political opinion and/or a breach of his rights under Articles 2 and 3 ECHR.
[2] It is probable that, in the event of returning to Somalia, the Appellant will seek and find employment in the media sector.
[3] The Appellant is not to be denied refugee status on the ground that it would be open to him to seek to engage in employment other than in the media sector.
[4] Documents such as Home Office Country Information Guidance and Country of Information publications and kindred reports should not be forensically construed by the kind of exercise more appropriate to a contract, deed or other legal instrument. Reports of this kind are written by laymen, in laymen's language, to be read and understood by laymen. Thus courts and tribunals should beware an overly formal or legalistic approach in construing them. Furthermore, reports of this type should be evaluated and construed in their full context,
[5] In cases where the Secretary of State seeks to withdraw a concession, or admission, the Tribunal should adopt a broad approach, taking into account in particular its inquisitorial jurisdiction, the public law overlay, the imperative of considering all relevant evidence and fairness to the litigant.
We maintain the anonymity order made previously under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless the Upper Tribunal or a Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the Appellant. This prohibition applies to, amongst others, all parties and their representatives.
This decision determines two main questions. The first is whether, given the prevailing conditions in Mogadishu, Somalia, the Appellant, a journalist, is at risk of persecution and/or breach of Articles 2 and 3 ECHR in the form of attacks inflicting serious injury or death in the event of his enforced return there. The second is the interesting question of law of whether the Appellant can be denied refugee status in the United Kingdom on the ground that it is reasonable to expect him upon return to engage in employment other than his chosen occupation of journalism. These questions are determined in a context where the Upper Tribunal has recently promulgated updated guidance on conditions prevailing in Mogadishu: see MOJ and others (Returns to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC)
The contours of this appeal emerge from the following passages in the decision of the First-tier Tribunal (“ FtT”):
“It is conceded by the Respondent that in general journalists may be at risk in Mogadishu. It is an established principle of refugee law that protection is to be refused if it is shown that the person seeking asylum can reasonably be expected to take measures to avoid the threat of persecution upon his return to his country of origin. This principle finds expression, for example, in the requirement for an applicant to demonstrate that it would not be reasonable, or that it would be unduly harsh, to expect him to relocate to an area where he would not face the real risk of persecution …..
It is common ground that this Appellant is a qualified teacher and that he practised as such prior to training as a journalist. It would not, in my view, be unreasonable to expect him to change his profession and to return to teaching, in order to avoid any risk he may face merely on account of being a journalist practising in Mogadishu …
I am further satisfied that even if the Appellant could show that the only reason that would compel him to change profession would be a fear of persecution he would not be entitled to international protection under the Refugee Convention …..
The Appellant's change of profession by returning to teaching would not involve a violation of or a denial of a right enshrined in the Convention. The right to practice ones profession does not enjoy protected status under the Convention ……
In the circumstances I find that to the extent that this Appellant would be at risk merely on account of his continuing to practice as a journalist in Mogadishu, it would be reasonable to expect him to revert to teaching as a means of earning and income and, hence, avoid any risk that would befall him as a journalist at the hands of the Al-Shabaab.”
[Emphasis added.]
Al-Shabaab (“AS”) is a radical Islamist group, a terrorist organisation.
The Appellant, who benefits from the protection of anonymity, is a national of Somalia, aged 29 years. This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State”), dated 02 January 2014, whereby the Appellant's application for asylum was refused. The Appellant appealed to the First-tier Tribunal (the “ FtT”) which, by its determination promulgated on 18 March 2014, affirmed the decision of the Secretary of State. The ensuing grounds of appeal raised the three issues of the asserted risk to the Appellant as a member of a group, namely journalists in Somalia; the Appellant's likely conduct on return to Somalia and, in particular, whether he would, or would be obliged to, transfer to a different profession; and the historical factual issue of whether the Appellant had been specifically targeted by AS. Permission to appeal was duly granted.
The error of law hearing before the Upper Tribunal was held on 29 May 2014. Upper Tribunal Judge Dawson held that the decision of the FtT was vitiated by error of law (see Appendix 1). The Judge, having recorded a limited concession by the Secretary of State's representative, ruled, in substance, that the FtT had not properly directed itself in law in relation to the matters raised in the first two grounds of appeal: see especially [13] – [14] of the decision. We draw particular attention to the following passages:
-
“[17] What is missing from the determination is a finding whether the Appellant would continue as a journalist …
-
There will need to be further evidence on this aspect ….
-
[18] If it is found that the Appellant will resume his occupation as a journalist on return, the issue will be whether it would be reasonable to expect him to change his career and to resume his earlier [teaching occupation] or another occupation.”
These passages shape the essential framework of the exercise of remaking the decision of the FtT which now falls to this Tribunal.
Upper Tribunal Judge Dawson expressly preserved a series of findings of fact contained in the determination of the FtT, namely:
-
(i) The Appellant worked as a journalist for Radio “X” in Somalia.
-
(ii) He did not at any stage come to the adverse attention of AS: his evidence to the contrary was a total fabrication.
-
(iii) He did not receive any threats on his mobile phone from AS.
-
(iv) None of his colleagues at the radio station was targeted or harmed before the Appellant left Mogadishu.
-
(v) The Appellant's wife had not relocated to a place of safety.
-
(vi) The Appellant's sister was aware of his intention to travel to the United Kingdom, confounding his claim to the contrary.
-
(vii) Little weight could be attributed to the documentary evidence on which the Appellant relied in support of his assertion that AS had threatened him.
-
(viii) Increased income was his initial motivation in training to become a journalist.
The preservation of these findings obviously has a bearing on the remaking exercise.
By reason of the manner in which the appeal hearing unfolded, it became necessary for the Tribunal to adjourn for the purpose of providing a preliminary ruling relating to the admission of fresh evidence (see Appendix 2). When making this ruling we found it convenient to promulgate our findings in relation to the Appellant's likely future employment in the event of returning to Mogadishu. At this juncture, we draw attention to the following passage in the Tribunal's error of law determination:
“What is missing from the determination [of the FtT] is a finding whether the Appellant would continue as a journalist and it is unclear that the Judge concluded the Appellant would practice as such on return. There will need to be further evidence on this aspect ……………
If it is found that the Appellant will resume his occupation as a journalist on return, the issue will be whether it would be reasonable to expect him to change his career and to resume his earlier or another occupation.”
See Appendix 1, [17] – [18]. Sequentially, the next decision of the Tribunal followed an uncompleted remaking hearing. This contains our finding on the issue of future employment.
We refer particularly to [24] – [27] of Appendix 2 and, in particular, our conclusion at [27]:
“In summary, therefore, we find as a matter of probability that the Appellant will, if returned, continue to pursue his interest in a career in broadcasting and media related activity. This would include a creative role in terms of research and writing for broadcasts. To this extent there will be a journalistic element. We...
To continue reading
Request your trial
-
Secretary of State for the Home Department v MSM (Somalia) United Nations High Commissioner for Refugees (Intervener)
...Case No: C5/2015/3380 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER [2015] UKUT 00413 (IAC) Royal Courts of Justice Strand, London, WC2A 2LL Deok Joo Rhee (instructed by Government Legal Department) for the Christopher Jacobs and Gu......
-
LC (Albania) v The Secretary of State for the Home Department The United Nations and Another (Intervener)
...to C-201/12) [2014] QB 1111 ("X, Y and Z"), as applied by the Upper Tribunal (Immigration and Asylum Chamber) in MSM (journalists; political opinion; risk) Somalia [2015] UKUT 413 (IAC) (" MSM (UT)"). He contends that the Qualification Directive, properly construed, requires the Supreme C......
-
Upper Tribunal (Immigration and asylum chamber), 2015-07-03, [2015] UKUT 413 (IAC) (MSM (journalists; political opinion; risk))
..."Times New Roman", serif } Upper Tribunal (Immigration and Asylum Chamber) MSM (journalists; political opinion; risk) Somalia [2015] UKUT 00413 (IAC) THE IMMIGRATION ACTS Heard at Field House, London Determination Promulgated On 24 March and 28 April 2015 Further submissions: 04 June 2015......
-
Upper Tribunal (Immigration and asylum chamber), 2016-06-08, AA/07983/2015
...avoid it.” The decision in HJ (Iran) was considered recently by this Tribunal in MSM (journalists; political opinion; risk) Somalia [2015] UKUT 00413 (IAC) at [35-48] in particular. That decision contains a focussed and in-depth discussion of the concept of ‘forced modification’ or ‘discree......