Scottish Court of Session Decisions

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 79

XA24/16

Lord President

Lord Brodie

Lord Glennie

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the Appeal by

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

against

AAH

Respondent

Appellant:  MacGregor; Office of the Advocate General

Respondent:  K J Campbell QC, Winter; Drummond Miller LLP

7 October 2016

Introduction

[1]        This is an appeal against a decision of the Upper Tribunal (Asylum and Immigration Chamber), dated 17 July 2015, under Section 13(4) of the Tribunals, Courts and Enforcement Act 2007.  The Upper Tribunal upheld the decision of the First Tier Tribunal dated 25 February 2015, which in turn had allowed an appeal by the respondent against his deportation to Somalia.  The issue is whether the determination of fact by the FTT, as reviewed by the UT, contained any error of law.

Immigration Rules
[2]        Section 32(5) of the UK Borders Act 2007 provides that the appellant must make a deportation order in respect of a foreign national, who has been convicted of an offence for which he has received a custodial sentence of 12 months or more, unless one of the exceptions in section 33 applies.  Section 33(2)(b) provides an exception where the order would breach the United Kingdom’s obligations under the UN Convention on the Status of Refugees 1951.  At the relevant time, the Immigration Rules, which implement the Convention, provided that:

“339A   A person’s grant of asylum will be revoked or not renewed if the Secretary of State is satisfied that: …

(v)       he can no longer, because of the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

(x)        having been convicted ... of a particularly serious crime he constitutes a danger to the community of the United Kingdom.”

Facts
[3]        The respondent is a Somalian national from Kismayo.  He is a member of the Bajuni minority.  He entered the United Kingdom on 15 February 2002 using a false passport.  On 3 April 2002 he was granted refugee status, with indefinite leave to remain, on the basis of the risks to him in Somalia at that time.  In 2008, the respondent was convicted of two charges of rape, and two charges of assault with intent to rape, at the High Court in Glasgow.  An extended sentence was imposed, with a 9 year custodial element.  A recommendation of deportation was made.  Following his release from custody in September 2013, the respondent was detained under the Immigration Act 1971.         

[4]        On 9 October 2014 the appellant revoked the respondent’s refugee status.  On 13 October an order for his deportation was made based upon paragraph 339(v) of the Immigration Rules.  It related solely to the change to the circumstances in Somalia, which, it was said, removed the risks previously associated with the respondent’s return.  

Determination of the FTT
[5]        The FTT noted that the cessation of the respondent’s refugee status had been based solely on the change of circumstances in his country of origin.  The appellant had proceeded on the basis of paragraph 339A(v), and not (x).  The FTT observed that, in terms of a country guidance decision (MOJ and others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC)), for ordinary civilians returning to Mogadishu, there was insufficient risk associated with a return to that city.  However, relocation to Mogadishu for a minority clan member, with no formal links to the city and no access to funds or family support, would be “unlikely to be realistic”.  

[6]        The respondent relied upon a report from Dr Markus Hoehne, from the University of Leipzig, who was one of the experts in MOJ and others (supra).  Dr Hoehne commented specifically on the respondent’s circumstances.  The security situation in southern Somalia (ie Kismayo) was still very volatile.  Whilst Al Shabaab had been pushed out of the capital, civilians were still subject to considerable violence in the more rural areas.  As a member of a minority group, the respondent would face “marginalisation”.  The whereabouts of the respondent’s family were unknown.  He had been away from Somalia for over 12 years.  

[7]        The FFT found that Somalia had suffered over 20 years of ongoing conflict.  The concerted effort to fight Al Shabaab had ultimately been successful.  They were now a spent force.  The cities had experienced rapid expansion, and real attempts were being made to rebuild the country.  The overall security situation had improved.  However, it could not confidently be concluded that the future of Somalia was secure.  

[8]        The most significant feature of the respondent’s case was that he came from a minority clan.  Although he might not be exposed to the same kind of violence as existed when he had left, such exposure remained a possibility.  He would not have the physical and economic support of a majority clan member.  He was 51 years old and had sustained a significant leg injury whilst in prison.  There was nobody in the UK to send him money.  He had spent a significant proportion of his time in the UK in prison.  There were no indicators that his return to Somalia would be cushioned whilst he established himself.  There was nothing to demonstrate support in his home area of Kismayo.  MOJ and others (supra) had indicated that relocation to Mogadishu would not be viable.  No other area was identified in which he could start his life anew.

[9]        The decision to return the respondent to Somalia solely on the basis of the changes in that country had accordingly been premature and not in accordance with the UK’s obligations under the Refugee Convention.  There was the potential for breaches of his human rights under Articles 2 and 3 of the European Convention.  

Determination of the UT
[10]      The appellant appealed to the Upper Tribunal on three grounds.  The first was that the FTT had misdirected itself by failing to make specific findings about the respondent’s credibility.  The judge had failed to follow the country guidance case.  The FTT had wrongly treated all minority clan members as the same.

[11]      Secondly, the FTT had misdirected itself by founding on a lack of family support in Somalia, or from anyone in the UK.  It had switched the burden of proof to the appellant, when it was for the respondent to show why he would not be able to sustain himself upon his return.  The FTT had failed to have regard to what it had cost the respondent to enter the UK illegally.

[12]      Finally, the FTT had misdirected itself in its approach to the respondent’s minority status.  The finding of residual risks to the respondent was contrary to the country guidance.  The FTT had failed to make findings on why the respondent would not be able to work in Mogadishu.

[13]      The UT noted that the grounds of appeal did not attempt to attack the FTT’s reasoning, that general conditions in Somalia had not improved sufficiently to remove the risks.  The grounds failed to recognise that it was not disputed that the respondent was a Bajuni, who were a small and unusual minority.  They had no significant presence in Mogadishu.  Somali was not their principal language.  The appellant spoke only broken Somali.  As a Bajuni, and unable to speak fluent Somali, there was no realistic prospect of the respondent relocating to Mogadishu.  

[14]      The UT commented that the grounds of appeal were weak and diffuse.  They failed to identify any error of law.  It was accurate to say that there was no evidence of family support in Somalia, or the prospect of funds from the UK.  It was too late to raise the question of the respondent’s funding for his voyage to the UK, which had taken place in 2001. It would be absurd to have expected the respondent to have led evidence that he had no family support in Kismayo, beyond his own oral evidence.

Submissions
Appellant
[15]      The appellant maintained that both the FTT and UT had erred in failing to apply the country guidance in MOJ and Others (supra).  The UT had failed to acknowledge that the FTT had erred in finding that there had been no change in country conditions in Somalia.  The UT had failed to recognise the material changes in Mogadishu and Somalia.  A fact sensitive assessment had to be carried out to determine the risk posed to an individual.  Being a member of a minority group was no longer determinative.  

[16]      MOJ and Others (supra) provided that it was for the respondent to establish that he would not be able to access the opportunities produced by the economic boom and that he would have no prospect of securing access to a livelihood on a return to Somalia.  The FTT had treated the lack of clan and family support as determinative.  It had failed to consider whether the respondent could secure a livelihood on return.  This absolutist approach was wrong.  The UT had failed to address the ground of appeal which challenged this finding.  This was a material error of law (JM v Secretary of State for the Home Department [2014] CSIH 104, Lady Clark at para 12).  MOJ and Others (supra) made it clear that an individual who could secure employment would not be at risk. The FTT had failed to recognise that an enquiry was required to determine whether the respondent could secure employment.  It had failed to make findings that the respondent would not be able to secure employment on his return to Mogadishu.  The UT had erred in failing to acknowledge that error.  The FTT, and the UT, had erred in treating lack of family support or funds from the UK as determinative of whether the respondent could take advantage of the economic boom.  A holistic approach had to be taken, rather a simple focus on one factor.

[17]      The FTT had erred in finding that there was no one in the UK to send the respondent funds on his return to Somalia.  It had failed to consider relevant factors such as the facilitated return scheme, and the fact that the respondent had had the funds to make the journey to the UK in the first place.  The FTT had failed to make findings in relation to all of the determining issues (Moray Council v Scottish Ministers 2006 SC 691).  The overall burden was on the appellant to establish that there had been durable and permanent change in Somalia. MOJ and Others (supra) established that there had been such a change.  In those circumstances, it was for the respondent to satisfy the FTT that he would be unable to take advantage of the economic opportunities which had presented themselves.  The FTT ought to have held that he had failed to discharge the burden of proof. 

Respondent
[18]      The respondent submitted that there had been no material error of law on the part of the UT in refusing to uphold any of the grounds of appeal. Both the UT and the FTT had recognised the country changes as described in MOJ and Others (supra).  The UT had found that the changes did not apply to the circumstance of the respondent.  It had correctly applied MOJ and Others (supra).  The UT had held that there was no realistic prospect of the respondent relocating to Mogadishu.  It had been entitled to do so, and had given sufficient reasons.  The UT had considered the individual circumstances of the respondent.  Both the FTT and the UT had analysed the respondent’s prospects of securing work on a return to Somalia.  In doing so, they had not treated a lack of family support or funds from the UK as determinative.  The issue of how the respondent had funded his journey to the UK had not been raised before the FTT.  The explanation that the respondent had given at the time, and which had been accepted by the appellant, was that he had sold his boat and his mother’s jewellery to fund the journey.  The appellant had not relied on either the respondent’s ability to fund the journey to the UK or potential access to the voluntary or facilitated return scheme in the refusal letter or before the FTT.  The court ought to disregard these elements of the appeal (SB v Secretary of State for the Home Department [2013] CSIH 89).

[19]      The economic boom was in Mogadishu, and not Somalia as a whole.  The burden was on the appellant to establish that the respondent was no longer entitled to refugee status by reason of material changes in his country of origin.  The FTT had not reversed the burden of proof.  It had accepted the respondent’s evidence, as it had been entitled to do.  The appellant had not produced any evidence to contradict that of the respondent’s expert. 

Decision

[20]      In MOJ and Others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC), the Upper Tribunal determined that an “ordinary civilian” returning to Mogadishu would face no real risk of persecution or harm so as to require protection.  The primary reason for this was the withdrawal of Al Shabaab from the city.  A person returning would look to his immediate family or clan for support, although help would be likely only from the majority clans.  If a returnee did not have family in the city, “careful consideration of all the circumstances” would be necessary before any decision were taken (paras (ix) and 407h).  It would be for the person facing a return to explain why he would not be able to access the economic opportunities now available (paras (x) and 407).  Only those with no funds coming from abroad and no real prospect of securing access to a livelihood would face the prospect of living in circumstances falling below the level of acceptability in human rights terms (paras (xi) and 424).  Relocation to Mogadishu for a person of a minority clan, with no former links to the city, no access to funds and no clan, family or social support, was, however, “unlikely to be realistic” (paras (xii) and 425).  There would be a real risk of such a person having to live in makeshift accommodation in conditions following below acceptable humanitarian standards.  This was the background against which the FTT and UT required to assess the respondent’s case.

[21]      The FTT observed that the only issue was the state of Somalia;  notably whether it was in such a state of stability that the appellant could be safely returned.  The terms of MOJ and Others (supra) were specifically noted.  The respondent’s expert had produced a report which dealt with the situation in both Mogadishu and Kismayo.  The FTT had accepted the contents of the report, which had been largely un-contradicted.  The respondent’s age, lack of support, minority clan membership and other personal circumstances, which were not disputed, had all been taken into account in the FTT’s assessment that the decision to return the respondent to Somalia had been premature and did not accord with the obligations under the Refugee Convention.  The respondent was at risk of having his Article 2 and 3 rights breached.  Problems in Kismayo remained.  It was specifically held, as a matter of fact, that the respondent could not realistically relocate to Mogadishu or elsewhere. 

[22]      At the stage of the appeal to this court, the focus became not so much whether the respondent ought to be returned to Somalia as a generality (which had been the main issue at the FTT) but whether, on the assumption that there was a continuing problem in Kismayo, he could realistically relocate – or perhaps more accurately whether it was reasonable or unduly harsh to expect him to relocate – to Mogadishu in all the circumstances (AH (Sudan) v The Secretary of State for the Home Department [2008] 1 AC 678). 

[23]      It is not possible to fault the reasoning of the FTT which is clear and cogent.  The FTT did note the changes in Somalia generally and Mogadishu in particular, as set out in the country guidance, but explained their limitations in the south of the country where the respondent was from and to which he might normally have been expected to return.  The FTT’s findings were specific to the respondent.  It had properly considered the respondent’s prospects upon relocation to Mogadishu and in particular had had regard to his age, health, lack of societal support, funds and his language difficulty.  There was no material failure to examine the respondent’s particular circumstances including his prospects of employment.  The FTT had taken all of these circumstances into account.  It did not simply take an absolutist approach to the effect that mere membership of the Bajuni minority, and not being a fluent Somali speaker, meant that relocation was unrealistic, although these factors may have been sufficient on their own. 

[24]      The UT did not do so either, although a single sentence may have given that impression on a casual reading.  That sentence was in the context of relocating from Kismayo.  Given that the respondent spoke only broken Somali and was a Bajuni, the conclusion of fact that it was not realistic or reasonable for him to relocate to Mogadishu was entirely justified.  The UT did, however, make reference earlier in its determination to a number of other factors, notably lack of not only clan, but also family, support, age, health, language, and financial position.  In this respect the UT did address the ground challenging the FTT’s allegedly absolutist reasoning.  

[25]      Little turns upon the contentions regarding potential state support from the UK and the cost of the respondent’s journey to the UK, especially given that these were not founded upon before the FTT.  When all the evidence was out, issues of onus seldom arise.  The FTT had made its findings in fact based upon the evidence and neither it, nor the reviewing UT, can be validly criticised for making their determinations of fact.  The decision of the FTT, that the respondent could not realistically be expected to relocate to Mogadishu, from his home state of Kismayo, was one of fact which was reached on the basis of country guidance on Mogadishu and the respondent’s particular circumstances.  There was no error of law in carrying out that exercise.  Although the grounds of appeal are phrased as involving errors in law, the appeal is essentially an attempt to review the FTT’s findings in fact.  No error has been identified.

[26]      The appeal must be refused.