Upper Tribunal (Immigration and asylum chamber), 2016-09-16, AA/10566/2015
| Jurisdiction | UK Non-devolved |
| Date | 16 September 2016 |
| Published date | 04 May 2020 |
| Hearing Date | 12 September 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/10566/2015 |
Appeal Number: AA/10566/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10566/2015
THE IMMIGRATION ACTS
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Heard at North Shields On 12 September 2016 |
Decision & Reasons Promulgated On 16 September 2016 |
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Prepared on 14 September 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES
Between
S. A.
(ANONYMITY DIRECTION MADE)
Appellant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Hussain, Counsel, instructed by Halliday Reeves Law Firm
For the Respondent: Ms Petterson, Home Office Presenting Officer
DECISION AND REASONS
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The Appellant entered the United Kingdom illegally and claimed asylum on 5 February 2015. That application was refused on 22 June 2015, and a decision to remove her from the UK was made in consequence.
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The Appellant’s appeal to the Tribunal against those immigration decisions was heard on 18 April 2016, and dismissed on all grounds by decision of Judge Hillis, promulgated on 26 April 2016.
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The Appellant was granted permission to appeal to the Upper Tribunal by decision of Judge Robertson of 13 July 2016. Her complaint was that she had identified herself not only as a member of the minority Sheikhal clan (which had been conceded by the Respondent) but also, at interview, as a member of the Gandhershe sub-clan [Q94]. The Respondent had not specifically disputed this claim, and the consequences of this claim appeared to have been overlooked by both the Respondent and the Judge.
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The Respondent filed a Rule 24 Notice dated 26 July 2016 in relation to the grant of permission to the Appellant, but the content of that notice did not engage with the central point to the Appellant’s complaint.
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Thus the matter comes before me.
The Appellant’s ethnicity
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The Appellant’s case in relation to her ethnicity, was as set out at interview, when she stated that she was a member of the Sheikhal clan, and Gandhershe sub-clan [Q94]. The Respondent did not formally dispute either element of that claim, and indeed she formally conceded that the Appellant was a member of the Sheikhal clan. It is accepted before me by Ms Petterson that the Judge was simply wrong to state as he did [48], that there was no evidence before him to identify to which sub-clan she belonged, and that both he and the author of the decision to refuse the asylum claim must have overlooked the relevant part of the Appellant’s account as given at her interview.
The Appellant’s credibility
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Mr Hussain accepts that the Appellant was not an impressive witness under cross-examination, and that the grounds offer no challenge to the Judge’s conclusions in relation to the weight that he could attach to the Appellant’s evidence upon the elements of her claim that were in dispute [31-34, 40-46]. The conclusions that the Appellant had not told the truth about the family members she had living in Somalia, where she had lived in Somalia from time to time, or, whether she was in contact with the members of her family outside the UK, were all well open to the Judge, and they were adequately reasoned, and followed the correct application of the burden and standard of proof. In short the Judge was entitled to conclude as he did that the Appellant was prepared to lie to him, and, that she had done so about material aspects of her case.
Conclusions
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Country guidance status was withdrawn from the decision of FK (Shekhal Gandhershe) Somalia CG [2004] UKIAT 127 on 18 March 2008 upon the promulgation of HH and Others (Mogadishu armed conflict risk) Somalia CG [2008] UKIAT 00022. The decision of AM & AM (armed conflict; risk categories) Somalia CG [2008] UKIAT 00091 retains country guidance status even now.
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Both FK and AM deal with the manner in which the Shekhal Gandhershe are perceived as a sub-clan in Somalia, and whether they would be likely to be considered as part of the Benadiri group. Since the decision in Mohamed [2002] UKIAT 08403 the Tribunal has accepted that the Shekhal are a collection of discrete sub-clans, and that the Shekhal Gandhershe are ethnically distinct from other sub-clans of the Shekhal, and that historically they have not been protected by, or affiliated to, the Hawiye. Ms Petterson accepts before me that there has been no adjustment to that position in the country guidance decisions that have been promulgated since AM.
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Unless the Tribunal were in a position to reject as untrue the Appellant’s claim to be Gandhershe, to conclude that she had lied about that sub-clan membership, and that she was in truth a member of a different sub-clan of the Shekhal as the Respondent had conceded she was, then the Tribunal should on the appropriate standard of proof have accepted that element of her claim. The Tribunal’s approach ought then to have been to resolve the disputed primary facts, and then to assess the risk of harm faced by the Appellant upon return to Mogadishu airport as a result of that ethnicity.
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In this case the Appellant would return to Mogadishu airport as a lone woman (since she admitted to having no male relative in the UK who would accompany her on return). She would upon arrival be likely to be perceived to be Benadiri by virtue of her membership of the Gandhershe.
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Accordingly the Appellant’s position as such should then have been assessed through the lens of the guidance to be found in AMM & Others (conflict; humanitarian crisis; returnees) Somalia CG [2011] UKUT 445, MOJ & Others (Return to Mogadishu) Somalia CG [2014] UKUT 442, and Said [2016] EWCA Civ 442.
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Regrettably there is no express reference to any country guidance within the decision. This omission prompted Mr Hussain to argue that the appeal ought to be remitted to the First Tier Tribunal. However, having considered that submission at some length with him, I am not satisfied that this submission was well founded, or that this would be a pragmatic course to follow. The findings of primary fact (which Mr Hussain accepts are not challenged as unsafe, or, inadequately reasoned) did not depend upon any assessment of the Appellant’s evidence in the context of a particular set of country guidance, but rather followed from the Appellant’s own inconsistency and lack of credibility as a witness under cross-examination. The findings of primary fact that the Judge made are adequate in my judgement to permit the assessment of the Appellant’s position upon return to Mogadishu airport through the lens of the guidance to be found in MOJ, upon the assumption in her favour that she is a member of the Shekhal Gandhershe as claimed, rather than some other sub-clan of the Shekhal.
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To return to live in her home area of Afgoye in safety the Appellant would first need to be able to travel there in safety as a woman who was returned to the Mogadishu airport alone, and as one who would be perceived to be a minority clan member/Benadiri.
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Afgoye is less than 50km from Mogadishu, and the area is considered sufficiently safe for IDP camps to have been created in the Afgoye corridor and for NGOs to operate there. The Judge found, and again this is not the subject of challenge in the Appellant’s grounds, that...
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