United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003743
	First-tier Tribunal Nos: PA/58247/2023 IA/00911/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 20 March 2025

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

 

Between

 

MA

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr J-P Kasusula, Solicitor, Kas & Co Solicitors

For the Respondent: Ms H Gilmour, Senior Home Office Presenting Officer

 

 

Heard at Field House on 26 February 2025

 

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the Appellant] ( and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant ( and/or other person). Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

1.               The Appellant is a national of Somalia who fled that country on 5 September 2015 following what he says was the murder of his father by the family of a Xawaalde clan member the previous month over the ownership of a garage. He then fled to the village of Tardo where he was accused subsequently by Al-Shabaab of having had sex with a young woman in whose home he was staying and he was detained and beaten. Due to conflict between members of the Xawadr clan and Al-Shabaab he was able to escape from detention and fled the country. All this events took place in Hiran, in the north central area of Somalia.

2.               The Appellant made a claim for asylum in Northern Ireland on 4 March 2022. He underwent a screening interview and on 6 April 2022 a positive reasonable grounds decision was made by the NRM due to the Appellant's assertion that he had been subjected to modern slavery during the course of his journey to the United Kingdom via Egypt. The Appellant had an asylum interview on 25 May 2023 but his application was refused on 28 September 2023. On 22 November 2023 a negative conclusive grounds decision was made. On 28 November 2023 the Respondent reviewed her decision and upheld it.

3.               The Appellant's appeal came before First-tier Tribunal Judge Gillespie for hearing in Glasgow on 19 April 2024.

4.               In a decision and reasons promulgated on 15 May 2024 the judge dismissed the appeal, essentially on the basis that he did not find the Appellant's account plausible; the Respondent had not found his claim to have been trafficked to be credible and he could internally relocate to Mogadishu.

5.               An application for permission to appeal was made in time on 8 August 2024 having been refused permission by the First-tier Tribunal.

6.               On 23 August 2024 permission to appeal was granted and an anonymity order made by Upper Tribunal Judge Loughran in the following terms:

"2. The grounds are unparticularised and difficult to follow. However, it can be ascertained that they claim that the Judge erred in her assessment of the Appellant's credibility, failed to have regard to relevant matters and evidence, failed to take account of the trauma the Appellant had endured as a victim of trafficking and erred in her assessment of Article 8 ECHR.

3. It is arguable that the Judge erred by rejecting the Appellant's account based on her own perception of what was reasonable and by failing to consider how the Appellant's claimed experiences and mental health problems could impact on his ability to give a clear account.

4. It is arguable that the Judge failed to consider the Appellant's claim to be a victim of trafficking. At paragraph 7 of the determination the Judge records that the Appellant received a positive reasonable grounds decision and negative conclusive grounds decision and that it was the Respondent's submission this aspect of the Appellant's claim could not be relied on and damaged his credibility. The only further reference to the Appellant's claim to be a victim of trafficking is at paragraph 41 where she appears to find that the negative conclusive grounds decision proves the Appellant was able to address the challenges of living in Egypt. The Judge was required and arguably failed to consider the Appellant's claim to be a victim of trafficking.

5. It is arguable that the Judge failed to undertake an assessment of whether there were very significant obstacles to the Appellant's integration in Somalia and consider relevant matters in her assessment of Article 8 ECHR.

6. The grounds disclose arguable errors of law".

Hearing

7.               At the hearing Mr Kasusula made submissions on behalf of the Appellant to the effect that the judge failed to appreciate the context of this appeal in that Somalia is a failed state where the government is not in control of the country and only survives in the capital, the rest of the country being controlled by Al-Shabaab who are trying to implement Sharia law. He submitted that this is apparent from [28], [29] and [30] where the judge made findings that the Appellant's account was implausible but failed to take account of the context of Somalia.

8.               In relation to the Appellant's assertion to be a victim of trafficking Mr Kasusula submitted that this was very important and should have been taken into consideration by the judge in relation particularly to the impact of trauma on the Appellant.

9.               In relation to internal relocation to Mogadishu, Mr Kasusula submitted that whilst at [33] and [35] the judge was of the view that this was an option, Mogadishu was not a safe place as Al-Shabaab was still able to strike and indeed had struck at a five star hotel guarded by the military.

10.           In her submissions Ms Gilmour sought to rely on a Rule 24 response dated 12 September 2024. This submitted inter alia:

"3. Given that the Appellant's conclusive decision was a negative one the FtTJ is not bound to go beyond that finding. At paragraph 26 the FtTJ states quite clearly that he conducted an assessment on the totality of the evidence. The FtTJ acknowledged the low standard of proof in an asylum claim and credibility is a matter for the FtTJ. The Appellant was given an opportunity to clarify inconsistent answers, 18. However the FtTJ was unable to place any weight on the Appellant's evidence. He points out at 28 that the Appellant had given alternative answers in his SI and failed to correct these. This is a mere disagreement with the findings and does not constitute an error of law.

4. It is submitted the FtTJ provided conclusive and detailed reasons on all the matters in the appeal. He has detailed fully why he has not found the Appellant credible and is entitled to make this finding.

5. The FtTJ was fully aligned with the country situation and Al-Shabaab when he made his findings about return to Somalia. The Secretary of State would submit that this was the correct course of action to take and there is no error of law.

6. The Respondent submits that the proportionality assessment undertaken by the FtTJ contains no error. At paragraph 50 the FtTJ explicitly states he considered the Appellant's private life factors and weighed them against the public interest factors and made the decision that they did not outweigh the public interest, a finding he was entitled to make based on the evidence presented. The Secretary of State submits there is no material error of law and the decision of the First-tier Tribunal should be upheld".

8. Ms Gilmour submitted that this was sufficient to show the Secretary of State's position and she relied on this. She submitted that there was a brief and clear position on the findings of the NRM and there was no material error in that respect. She submitted the Appellant's submissions were no more than a disagreement with the judge's findings and the issue is whether the Appellant has proven to the lower standard that the Secretary of State's decision was wrong and that he should have been granted asylum. Ms Gilmour submitted that weight was a matter for the judge and that the findings highlighted at [28] to [30] indicate that this was no more than a disagreement. The decision clearly gave reasons as to why the judge attached little weight to the Appellant's evidence and it was open to him to do so. These findings could not be read in isolation and need to be read as a whole and the grounds show no material error.

11.           In reply, Mr Kasusula submitted that the judge should at least have considered leave outside the Rules on compassionate grounds taking into account the Appellant's trauma.

12.           I reserved my decision which I now give with my reasons.

Decision and reasons

13.           Whilst the grounds of appeal were not clearly set out, they have been helpfully summarised in the grant of permission to appeal by UTJ Loughran.

14.           I find that there are material errors of law in the decision and reasons of FtTJ Gillespie for the following reasons:

14.1. the Appellant's core claim is rejected on the basis that the FtTJ found it implausible at [28] as to how his father's death was communicated to his mother; that the witness would know why he had been killed and telephone his mother telling her to flee and in the SI the Appellant stated his father was killed in his garage whereas in his oral evidence he said it occurred in the middle of town and his mother said he was killed near the garage. At [29] the judge found the Appellant's account of his escape from jail and by implication the reason for him being there to be implausible as it seems highly unlikely there was a mass breakout which the Appellant was able to take advantage of and it is unlikely the Appellant could have travelled on foot the long distances he claims without being stopped at checkpoints. The FtTJ at [30] found it unlikely that he was suspected of being involved in a sexual relationship with a girl just because he was found in her house by Al-Shabaab to be unlikely and in general his account is lacking in sufficiency of detail on the multiple dramatic events that he claims occurred over a short period of time. The FtTJ then at [32] goes on to find that even if the claim is a true one it has to be put in temporal context. Whilst this is correct at no point does the FtTJ consider the plausibility of the Appellant's claim sited within the specific context of Somalia and I find this amounts to a material error for this reason.

14.2. As UTJ Loughran pointed out in the grant of permission to appeal, there is no finding by the FtTJ, who was empowered to make her own decision, as to whether or not the Appellant has been trafficked cf. MS (Trafficking - Tribunal's Powers - Art. 4 ECHR) Pakistan [2016] UKUT 226 (IAC). Given that the Appellant's complaint of consequent mental health problems and PTSD this aspect of the claim was material not only to the Appellant's ability to give a consistent account and his oral evidence but also his ability to internally relocate and the question of whether there would be very significant obstacles to his integration.

14.3. Whilst at [42]-[45] the FtTJ appeared to accept that the Appellant has been diagnosed with PTSD she found at [44] that the Appellant was taking fluoxetine only; there was no evidence that this medication would not be available to him and that "a fuller assessment of his medical condition would raise the question of article 3 ECHR and the high threshold in AM (Zimbabwe)." However the FtTJ made no finding on whether article 3 was engaged and gave no consideration to the role of the Appellants' mental health in his ability to relocate or the article 8 proportionality assessment and whether there would be very significant obstacles to his integration in Somalia after an absence of more than 9 years

Notice of Decision

15.           The decision and reasons of the First tier Tribunal Judge contains material errors of law. I set that decision aside and remit the appeal for a hearing de novo before a different First tier Tribunal Judge.

 

Rebecca Chapman

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

16 March 2025