Upper Tribunal (Immigration and asylum chamber), 2022-06-14, IA/00299/2020
| Appeal Number | IA/00299/2020 |
| Hearing Date | 22 March 2022 |
| Published date | 29 June 2022 |
| Date | 14 June 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: IA/00299/2020
(PA/50485/2020)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00299/2020
(PA/50485/2020)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 22 March 2022 |
On 14 June 2022 |
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Before
UPPER TRIBUNAL JUDGE McWILLIAM
Between
A S J
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms D Revill, Counsel, instructed by Ata & Co Solicitors
For the Respondent: Ms A Ahmed, Home Office Presenting Officer
DECISION AND REASONS
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The Appellant is a citizen of Somalia. His date of birth is 5 January 1998. He fled Somalia in 2014. He travelled to Sweden (via Ethiopia) where he lived with his aunt. He made a protection claim in Sweden which was refused. He came to the United Kingdom in February 2018 unlawfully with the help of an agent. He made a claim on protection grounds on 24 February 2018. In October 2018 he was removed from the United Kingdom to Sweden. He travelled unlawfully again to the United Kingdom in April 2019 using a false passport. He made another claim for asylum on 29 May 2019.
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In a decision dated 8 February 2022 I set aside the decision of the First-tier Tribunal (Judge Bartlett) dismissing the Appellant’s appeal against the decision of the SSHD dated 17 June 2020 on protection grounds having found that he could safely and reasonably relocate. The Appellant is at risk on return to Barawe, his home area of Somalia, from the militant group Al- Shabaab, as found by the First-tier Tribunal. I found a that the judge erred in respect of relocation. My error of law decision reads as follows;-
“9. Ground 1 asserts that the judge erred in misapplying the guidance in MOJ with reference to the judge’s finding at paragraph 20(x) (the Appellant is a member of a minority clan, who at the most would be able to provide a support network in terms of helping to find a livelihood). The guidance in MOJ specifically at paragraph (vii) of the headnote indicates that help in re-establishing oneself and securing a livelihood is only likely to be forthcoming for majority clan members as minority clans may have little to offer. It was not in dispute that the Appellant is a member of the Ashraf clan which is a minority clan. The judge set out (vii) to (xi) of the headnote in MOJ however, the paragraphs are incorrectly numbered and what in fact the judge set out was (viii) to (xii). The significance of this is that the judge did not set out paragraph (vii) of the headnote in MOJ. This does not in itself amount to an error of law however, it tends to support the judge misunderstanding the significance of being a member of a minority clan in terms of available support. While I appreciate the terminology used by the judge, ‘at the most’ at paragraph 20(x), it is not clear what weight the judge attached to clan support. In the light of what is said by the Upper Tribunal at paragraph 343 of MOJ, the headnote at (vii) and the judge finding the case, ‘reasonably, finely balanced,’ I cannot be certain that the judge did not attach impermissible weight to the availability of minority clan support. This is a material error. While I have taken on board, Ms Ahmed’s submission about the terms of the findings in MOJ and accept that “ may have little to offer” is not necessarily the same as not being able to offer any support, the judge did not make it clear what weight he attached to clan support”
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Ms Revill was unwell during the error law hearing. I directed that at the resumed hearing I would determine grounds 2-4 as a preliminary issue, having set aside the decision on the basis that ground 1 was made out. The remaining grounds are significant because they relate to the overall finding of the judge that the Appellant would receive help from abroad on his return to Somalia by way of remittances. The judge took into account that the Appellant had paid for agents on two or three occasions. Ground 2 is that the judge did not have regard to the Appellant’s own source of income from the Swedish government which he could have used to fund the journey. This is a source of income which would not be available on his return to Somalia. Furthermore the judge did not take into account that his journey from Somalia to Sweden via Ethiopia was funded by the Appellant’s mother with whom he has lost contact. The judge accepted that the Appellant would not be supported by his mother in future. Ground 3 asserts that it was not open to the judge to reject the Appellant’s claim to have travelled using a lost passport because this was not a matter raised by the Secretary of State. This is significant because he did not pay an agent to facilitate his journey. Ground 4 asserts that the judge failed to give any or adequate reasons for finding that the Appellant’s uncle would financially support him in Somalia.
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The Judge of the First-tier Tribunal was not satisfied that the Appellant would not receive financial support from his family if he were returned to Mogadishu. The judge stated as follows
“ 16. … this is because on the Appellant’s own account his family has paid for an agent on two occasions for him to enter firstly Sweden in 2014 and several years later the United Kingdom in 2019. The Appellant claimed that he entered the United Kingdom in 2018 on a passport that he found at a football ground. I find this claim to be wholly unconvincing because it would have been a master stroke of luck for the Appellant to have found a passport with a photo and a date of birth that bore sufficient resemblance to him for him to use to fly to the United Kingdom. Therefore I find that the Appellant has paid an agent on three occasions to enter European countries. Even if it were only two occasions this would involve a substantial amount of money.
17. The Appellant’s account is that his aunt works but he does not know what her income and expenditure is. He does not know what his uncle’s income is. The Appellant’s evidence about his uncle was that he did not care about him he let him stay at the address but mainly as a correspondence address. Even taking the Appellant’s claim that his uncle has little interest in him, the Appellant felt sufficient connection to his uncle to re-enter the United Kingdom after his first entry in 2018 to go and stay with his uncle.
18. I agree with Ms Revill’s submission that the Appellant cannot be criticised for failing to provide information about his contact with the Red Cross or any other evidence about contacting his mother because it had not been raised by the Respondent at any time until oral evidence.
19. In summary I conclude that the Appellant would not have family to assist him if he were sent to Mogadishu but I find that he would receive financial support from relatives outside Somalia, namely his aunt and uncle and whoever has paid for his illegal entry to the United Kingdom.
20. I must carefully assess all the circumstances surrounding the Appellant’s potential removal to Mogadishu:
(i) the Appellant is a healthy young man;
(ii) it was evident from the hearing that he speaks reasonable English;
(iii) the Appellant has limited education that he attended school in Somalia and Sweden. I do not consider that limited formal qualifications would prove a barrier to finding a livelihood in Mogadishu – the economy is not knowledge based;
(iv) the Appellant moved to Sweden as a teenager and later to the United Kingdom. He has demonstrated personal fortitude and an ability to establish himself and form a new life. These are skills that would be most useful to him if he were sent to Mogadishu;
(v) the Appellant has no family to assist him in Somalia;
(vi) the Appellant has never lived in Mogadishu;
(vii) the Appellant would benefit from financial support from relatives outside Somalia;
(viii) the Appellant left Somalia as a teenager but he was not an adult;
(ix) the Appellant had been absent from Somalia for six years which is a considerable period of time in the life of a young man;
(x) the Appellant is a member of a minority clan who, at the most would be able to provide a support network in terms of helping to find a livelihood;
(xi) the Appellant has been surrounded by Somali culture his entire life as. when he has been outside Somalia he has lived with his extended Somalian family;
(xii) the Appellant speaks the language in Somalia and is able to communicate fully”.
Error of law - Grounds 2-4
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When considering whether the Appellant would have remittances from abroad the judge took into account that the Appellant entered Sweden in 2014 having paid an agent and that he also entered the United Kingdom 2018 with an agent, the implication being that the Appellant had access to funds. The Appellant’s evidence was that his mother paid for the first trip to Sweden in 2014. This was not challenged by the SSHD. It was accepted by the judge that the Appellant no longer had contact with his mother. Therefore it was not reasonable to assume that she could finance the Appellant if he returned to Somalia. In respect of the second trip (from Sweden to the United Kingdom) in 2019...
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