Upper Tribunal (Immigration and asylum chamber), 2021-08-25, PA/01403/2020

JurisdictionUK Non-devolved
Date25 August 2021
Published date09 September 2021
Hearing Date05 August 2021
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberPA/01403/2020

Appeal Number: PA/01403/2020 (V)


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/01403/2020 (V)


THE IMMIGRATION ACTS


Heard at Cardiff Civil Justice Centre

Remotely by Microsoft Teams

Decision & Reasons Promulgated

On 25 August 2021

On 5 August 2021





Before


UPPER TRIBUNAL JUDGE GRUBB



Between


AHA

(ANONYMITY DIRECTION MADE)

Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellant: Mr A de Ruano, Goodfellows Solicitors

For the Respondent: Mr C Avery, Senior Home Office Presenting Officer



DECISION AND REASONS

  1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.

Introduction

  1. The appellant is a citizen of Somalia who was born on 4 August 1977.

  2. The appellant arrived in the United Kingdom on 8 November 2009. On 18 November 2009, he claimed asylum. That application was refused on 17 December 2009. The appellant’s appeal to the First-tier Tribunal (Judge Walters) was dismissed on 8 February 2010. Thereafter, he was refused permission to appeal by both the First-tier Tribunal and Upper Tribunal and he became appeal rights exhausted on 24 September 2010.

  3. The appellant made further submissions to the Home Office on 5 July 2012 which were refused on 1 October 2012. He again made further submissions on 15 October 2014 and those were refused on 16 April 2015. Neither decision gave rise to a right of appeal.

  4. Then, on 22 March 2017 the appellant made further submissions. He claimed to be a member of the minority, Tuni clan from Mogadishu and to be at risk on return from majority clan militia and also from Al-Shabab. He claimed asylum, humanitarian protection and that his removal would breach Art 8 of the ECHR.

  5. On 31 December 2019, the Secretary of State refused each of the appellant’s claims. The Secretary of State did not accept that the appellant was a citizen of Somalia or that he was a member of the Tuni, minority clan. The Secretary of State rejected the appellant’s claim, therefore, to be at risk of persecution on return and also to be entitled to humanitarian protection under Art 15(c) of the Qualification Directive (Council Directive 2004/83/EC). Further, the Secretary of State concluded that the appellant could not succeed based upon his private and family life in the United Kingdom under para 276ADE(1) of Appendix FM of the Immigration Rules (HC 395 as amended) or under Art 8 outside the Rules.

The Appeal to the First-tier Tribunal

  1. The appellant again appealed to the First-tier Tribunal. In a decision sent on 30 November 2020, Judge M R Hoffman dismissed the appellant’s appeal on all grounds.

  2. Unlike the Secretary of State, the judge accepted that the appellant was a citizen of Somalia. However, he did not accept that the appellant was a member of the Tuni, minority clan or that he would be at risk on return to Mogadishu either under the Refugee Convention or under Art 15(c) of the Qualification Directive. The judge also found that the appellant had not established that there were “very significant obstacles” to his integration on return under para 276ADE(1)(vi) of the Rules or that his removal would breach Art 8 outside the Rules.

The Appeal to the Upper Tribunal

  1. The appellant sought permission to appeal to the Upper Tribunal. On 7 January 2021, The FtT (Judge Adio) granted the appellant permission to appeal.

  2. The appeal was listed for a remote hearing at the Cardiff Civil Justice Centre on 5 August 2021. I was based in court whilst Mr de Ruano, who represented the appellant, and Mr Avery, who represented the Secretary of State, joined the hearing remotely by Microsoft Teams.

The Appellant’s Challenge

  1. On behalf of the appellant, Mr de Ruano relied upon the grounds of appeal which he developed briefly in his oral submissions. Although unenumerated, I will conveniently refer to these as Grounds 1-5.

  2. First, Mr de Ruano submitted that the judge had wrongly failed to give proper regard to the fact that the appellant had been established by DNA evidence to be the brother of two sisters who (together with their mother) had been granted refugee status in the UK. That, he submitted, was strongly indicative that the appellant was, as his sisters had claimed, a member of the Tuni, minority clan. He submitted that the judge had applied an “unduly high burden of proof” in not accepting that evidence. (Ground 1)

  3. Secondly, Mr de Ruano submitted that the judge had failed to give proper regard to the expert report of Mr Omer Ahmed who had stated that the appellant was “to a high degree of probability likely to be a member of the Tunni clan” on the basis that the expert’s report lacked detail about the questions he had asked the appellant. He relied upon the expert’s expertise and qualifications. (Ground 2)

  4. Those were the grounds upon which Mr de Ruano made oral submissions. There are an additional three points raised in paras 7–9 of the grounds, which Mr de Ruano was content to rely upon in their written form.

  5. Thirdly, the grounds contend that the judge, whilst recognising that there were problems with the previous judge’s (Judge Walters) reliance upon the Sprakab Linguistic Report, had not taken into account those shortcomings. (Ground 3)

  6. Fourthly, the judge’s finding that appellant’s relatives in Mogadishu would be able to provide support for him, was speculative and not founded on any solid evidence. (Ground 4)

  7. Finally, in respect of Art 8 of the ECHR, the grounds contend that the judge was wrong not to accept that “family life” had been established between the appellant and his close family in the UK as these were his only family members and they had all fled Somalia to come to the UK. (Ground 5)

The Respondent’s Submissions

  1. On behalf of the Secretary of State, Mr Avery submitted that the judge had not erred in law in dismissing the appeal.

  2. First, he submitted that the judge had, at paras 28 and 29, addressed the issue concerning the respondent’s recognition of the appellant’s sisters as being refugees. However, Mr Avery submitted that the judge was right to note that it was not known upon what basis they were granted refugee status. Mr Avery acknowledged that there was no record held by the Home Office on that issue. It was, he submitted, likely to be a combination of factors and they were both lone females with no family to return to in Mogadishu. It could not be assumed that the Secretary of State had accepted that they were members of the Tuni, minority clan.

  3. Secondly, as regards the expert’s report, Mr Avery submitted that the judge had dealt with this at paras 29–32 of his decision. The judge had explained why he did not give weight to the expert’s conclusion. Mr Avery also pointed out that the expert had relied on the fact the appellant’s sisters had been granted refugee status and that the DNA evidence showed they were related as he claimed.

  4. Thirdly, Mr Avery submitted that the issue of the appellant’s clan membership was not a key factor. The judge had applied MOJ & Ors Somalia CG [2014] UKUT 00442 (IAC) and had accepted that the appellant could reasonably and safely return to Mogadishu where he would not be at risk including risk from Al-Shabab.

  5. Fourthly, Mr Avery submitted that it had been open to the judge reasonably to find that ‘family life’ was not established between the appellant and his adult siblings and mother in the UK.

Discussion

  1. I will deal with each of the grounds in turn.

Ground 1

  1. Judge Hoffman dealt with the argument concerning the respondent’s recognition that the appellant’s sisters and mother were refugees and, therefore, that supported the appellant’s claim to be a member of the Tuni, minority clan at paras 28 and 30.

  2. At para 28, the judge said this:

Despite the findings of Judge Walters, the appellant submits that I should nevertheless find that he is from the Tuni clan. He first seeks to rely on the fact that he has provided DNA evidence that demonstrates that he is related as claimed to his three sisters and mother. He submits that his sisters and mother were granted refugee status by the respondent on the basis that they were from a minority clan. While I acknowledge that the appellant’s sisters and mother also claim to be Tuni, I find that their evidence alone is not sufficient to discharge the burden given that they will have an interest in helping their brother remain in the UK. Moreover, there is no evidence before me to demonstrate on what basis the appellant’s sisters and mother claimed asylum. In cross-examination, all three sisters confirmed that the respondent granted them refugee status rather than them having to appeal to the Tribunal. Mr de Ruano submitted that it is almost certainly...

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