ASJ (Somalia) v Secretary of State for the Home Department [2025] EWCA Civ 282

[2025] EWCA Civ 282Case No CA-2023-000380
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE McWILLIAM
IA/00299/2020
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 March 2025
Before
LORD JUSTICE COULSONLORD JUSTICE LEWISLORD JUSTICE WILLIAM DAVIS
Between
ASJ (SOMALIA)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Ronan Toal (instructed by Ata & Co Solicitors) for Appellant.Zane Malik KC (instructed by Government Legal Department) for RespondentHearing Hearing date: 11 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 18 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is an appeal against a decision of the Upper Tribunal promulgated on 14 June 2022. By that decision the Upper Tribunal dismissed an appeal against a decision of the First-tier Tribunal which, in turn, had dismissed an appeal against a decision of the respondent, the Secretary of State for the Home Department, refusing a claim by the appellant, ASJ, for the grant of asylum or humanitarian protection.[2]In brief, the appellant is a national of Somalia. The Upper Tribunal found that it was not safe for him to return to Barawe, his home area in Somalia. The Upper Tribunal, however, decided that it would not be unduly harsh or unreasonable to expect the appellant to relocate to Mogadishu in Somalia (where there was no suggestion that he would be at risk).[3]The appellant appeals on one ground, namely that:
“The [Upper Tribunal] applied the wrong standard of proof when it decided that he could relocate. Its finding that it was ‘reasonably likely’ that the [appellant] had family or a network that could support him in the place of relocation did not entitle the [Upper Tribunal] to exclude a reasonable likelihood that he would not have such support in which internal relocation would not be reasonable.”
[4]By a respondent’s notice, the respondent seeks to uphold the decision on an additional ground, namely that the concept of burden and standard of proof is not apt in the context of issues concerning internal relocation. It is appropriate simply to approach the issue as a holistic assessment of all the circumstances.

THE LEGAL FRAMEWORK

[5]Individuals may make a claim for protection. For present purposes, a protection claim is one that removal from the United Kingdom would breach the United Kingdom’s obligations(a) under the Refugee Convention or(b) in relation to persons eligible for humanitarian protection (see section 82 of the Nationality, Immigration and Asylum Act 2002).[6]Under the Refugee Convention, a contracting state may not return a refugee to a territory where he faces persecution on account of his race, religion, nationality, membership of a political social group or political opinion (see Article 33). Article 1A of the Refugee Convention provides that the term “refugee” applies to a person who: “… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having nationality and being outside the country of his former habitual residence …is unable, or owing to such fear is unwilling to return to it”.[7]A claim for humanitarian protection in the United Kingdom may be made where the person is not a refugee but substantial grounds have been shown for believing that if he is returned to his country of origin he would face a real risk of suffering serious harm and is unable, or owing to such risk, unwilling to avail himself of the protection of that country and is not excluded from humanitarian protection (see paragraph 339C of the Immigration Rules).[8]For a fear of persecution to be well-founded, the person claiming asylum must show that there is a reasonable degree of likelihood that he would be persecuted on grounds prohibited by the Refugee Convention: see R v Secretary of State for the Home Department ex p. Sivakumaran [1988] AC 958, at 994F-H (per Lord Keith, with whom the other members of the House agreed).[9]It is recognised that where a person has left his own country, but could have relocated to another part of his own country where he would not have a well-founded fear of persecution, he would not qualify as a refugee under Article 1(A) of the Refugee Convention (see Januzi v Secretary of State for the Home Department [2006] UKH 5, [2006] 2 AC 416 per Lord Bingham, with whose judgment the other members of the House agreed). The same must logically be true in respect of a claim for humanitarian protection if a person would not suffer a risk of serious harm if he relocated to another part of his country where he would not face such a risk.[10]That position is reflected in domestic law. The Secretary of State does not have to grant refugee status to a person if he would not have a well-founded fear of persecution in a part of their country of nationality and they can reasonably be expected to travel to and remain in that part of the country (see section 35 of the Nationality and Borders Act 2022 and paragraph 339O(i)(a) of the Immigration Rules). Similarly, the Secretary of State does not have to grant humanitarian protection if the person would not face a risk of serious harm in part of the country and the person can reasonably be expected to stay in that part of the country (see paragraph 339O(i)(b) of the Immigration Rules).[11]The leading authority on the issue of internal relocation is the House of Lords decision in Januzi. The issue there was whether, in judging the reasonableness of internal relocation, account had to be taken to any disparity between the civil, political and socio-economic rights which the person would have in the place of relocation as compared with the country where he claimed asylum (to which the answer was no, subject to certain exceptions). Lord Bingham also gave guidance on the proper approach to the question of internal relocation and, at paragraph 21, said this:
“…The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. … There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department [2002] 1 WLR 1891, para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls … All must depend on a fair assessment of the relevant facts.”
[12]The issue was further considered in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 1 AC 678. At paragraph 5, Lord Bingham, with those judgment the other members of the House agreed, cited the paragraph set out at paragraph 8 above and said this:
“Although specifically directed to a secondary issue in the case, these observations are plainly of general application. It is not easy to see how the rule could be more simply or clearly expressed. It is, or should be, evident that the inquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant. There is no warrant for excluding, or giving priority to, consideration of the applicant's way of life in the place of persecution. There is no warrant for excluding, or giving priority to, consideration of conditions generally prevailing in the home country. I do not underestimate the difficulty of making decisions in some cases. But the difficulty lies in applying the test, not in expressing it. The humanitarian object of the Refugee Convention is to secure a reasonable measure of protection for those with a well-founded fear of persecution in their home country or some part of it; it is not to procure a general levelling-up of living standards around the world, desirable though of course that is.”
[13]The matter was considered again by the Supreme Court in SC (Jamaica) v Secretary of State for the Home Department [2022] UKSC 15, [2022] 1 WLR 3190. Lord Stephens, with whom the other Justices agreed, said that “the stringency of the reasonableness test is not to be underestimated” (paragraph 60). The question is whether it is unreasonable, in the sense of unduly harsh, to expect the person to relocate internally within the country of origin.

THE FACTS

[14]The appellant is a national of Somalia. His date of birth is 5 January 1998. He was born, and lived, in Barawe in Somalia. He left Somalia in 2014. He travelled to Sweden (via Ethiopia) and lived there with his aunt. He made a claim for asylum in Sweden but that was refused. He came to the United Kingdom, unlawfully, in 2018 with the help of an agent. He made a claim for asylum or humanitarian protection on 24 February 2018. In October 2018 he was removed to Sweden. The appellant again travelled unlawfully to the United Kingdom in April 2019 using a false passport.[15]The appellant applied to the Secretary of State for protection. He claimed that he feared the Islamist Al-Shabaab group. He said that that group had killed his uncle and threated him in order to force him to join them. In the decision letter dated 17 June 2020, the respondent reviewed the position in Somalia. She considered that a person would only be a target of Al-Shabaab if he had a high profile. The appellant was not such a person. The respondent went on to consider the question of internal relocation. She noted that the appellant feared returning to the area where he was born, Barawe, which was 200 kilometres to the south of the capital, Mogadishu. The respondent considered that the appellant could return to Somalia and relocate to Mogadishu or another urban area. The letter said at paragraph 73:
“73. Therefore based on the individual circumstances of your claim and the background information above, you have not shown that it would be unreasonable to expect you to return…You could relocate to Mogadishu or other urban areas (or another location in Somalia). You have already demonstrated considerable personal fortitude in relocating to the United Kingdom and attempting to establish a life here and you have offered no explanation why you could not demonstrate the same resolve to re-establish your life in Somalia. It is therefore concluded that you have the skills that you could utilise upon your return to Somalia, including an ability to gain lawful employment. As such you do not qualify for international protection.”
[16]The appellant appealed to the First-tier Tribunal. That tribunal considered the evidence and the guidance given in the decision in MOJ & Others (Return to Mogadishu) [2014] UKUT 00442. It accepted that the appellant could not return to his home area as it was surrounded by areas controlled by Al Shabaab. It found that the appellant was not a person in whom Al-Shabaab would have such an interest that they would pursue him throughout the country. It found that he would be an ordinary individual returning to Mogadishu. It described the case as finely balanced but concluded overall that it would not be unduly harsh for the appellant to return to Mogadishu.[17]The appellant appealed to the Upper Tribunal. That tribunal decided that the First-tier Tribunal had erred in law. It had not had regard to a specific part of the guidance given in MOJ which indicated that assistance in re-establishing and securing a livelihood was only likely to be forthcoming for majority clan members as minority clan members may have little to offer by way of assistance. The appellant was from a minority clan. The Upper Tribunal also, subsequently, upheld further grounds of appeal including one concerning the inability of the appellant’s mother to fund him if he returned to Somalia. The overall finding in relation to remittances to the appellant from abroad if he returned to Somalia was therefore flawed. The decision of the First-tier Tribunal was set aside.

THE JUDGMENT OF THE UPPER TRIBUNAL

[18]The Upper Tribunal decided to re-make the decision rather than remit the matter to the First-tier Tribunal. There was a hearing at which it had the bundle of evidence prepared for the First-tier Tribunal hearing and a bundle prepared for the Upper Tribunal hearing which included witness statements from the appellant’s aunt (who lived in Sweden), his uncle (who lived in England) and the appellant himself. The appellant gave evidence. The Upper Tribunal also took into account the decision in MOJ, and also the recent decision in OA (Somalia) CG [2022] UKUT 003 which was decided after the hearing in the First-tier Tribunal. That decision gave further country guidance on Somalia.[19]At paragraphs 13 to 16, the Upper Tribunal said this: “13. The First-tier Tribunal made findings which are not challenged. The Appellant is from a minority clan. He has no family in Somalia to assist him. He left Somalia in 2014, since when he has not had contact with his mother. He has no health problems. He has not worked in Somalia, having left as a child. He is at risk on return to his home area. He has never lived in Mogadishu. While he was in Sweden he lived with his aunt …. In the United Kingdom he lives with his uncle…”.[20]The Upper Tribunal next considered the question of whether it would be unduly harsh or unreasonable to expect the appellant to return to Somalia. It began by considering the support available to the appellant if he returned. It found that the appellant was not in contact with his mother, noting that that was not surprising given the civil war and the mass displacement of people that had occurred in Somalia. It considered the evidence in relation to the appellant’s aunt and uncle and found that they could only offer minimum assistance by way of providing accommodation. It held that it could not be inferred from the fact that a family member was able to accommodate a relative that they would be able to support them to live independently by sending remittances from abroad. The Upper Tribunal found that the aunt and uncle would not personally be able to send remittances from their income to the appellant if he returned to Somalia.[21]The Upper Tribunal next considered the resources of the appellant. He received a minimal income as an asylum seeker from the state (and had previously done so from Sweden). The amount was not a significant sum of money. While the appellant did not have to pay accommodation costs (in England or Sweden), the Upper Tribunal found that “it is reasonably likely that his income from the state is used for living costs and essentials because of the limited support his aunt and uncle are able and willing to give him” (paragraph 22). The Upper Tribunal noted that the appellant did not have other relatives to assist him in Somalia. The Upper Tribunal then considered whether there were other sources of support open to the appellant and said this:
“26. I take into account that the Appellant paid an agent to travel from Sweden to the United Kingdom in 2018. In 2019 he had funds to pay for a flight from Sweden to the United Kingdom. I have no evidence of the costs of either journey. I accept that the Appellant had a minimal income at this time. I find that the evidence does not establish that this income would enable him to have personally funded these journeys. From his evidence it is reasonably likely that his small income has been used for essential living costs aside from accommodation. 27. It was open to the Appellant to provide further evidence to explain how the trips were funded. I reasonably infer that there were some funds available to him over and above asylum support to enable him to fund the two journeys within a period of 14 months. I agree …that there is a gap in the evidence. 28. The First-tier Tribunal found that the Appellant would have the benefit of remittances from his aunt and uncle in the UK. Whether the Appellant will enjoy remittances remains a case specific question which will turn on the circumstances and means of those making remittances (see OA at [264]). I am satisfied that they personally are not in a position to provide the Appellant with funds. The Appellant has been found not to have nuclear family or close relatives in Somalia to assist with re-establishing himself. I take into account that his mother and siblings have been lost through migration and he is not in contact with them. However, what is clear is that the Appellant has family or clan links in Europe which I find are reasonably likely to be wider than just his aunt and uncle. I reach this conclusion because the Appellant has funded journeys to the United Kingdom in 2018 and 2019 and his mother was able to fund the family’s migration in 2014. I find that the Appellant has diaspora links with family or clan who have provided him with support and would be in a position to make remittances. I find that the Appellant has not been entirely honest or has given an adequate account of how trip have been funded. 29. The UT found in OA that there is a “non-negotiable obligation to help one’s kinsmen in times of need” and that “cultural imperative lies behind the flow of remittances into Somalia, …… it also provides a culturally compelling reason for those still in Somalia to provide assistance to returnees”
. The UT found that there are extensive links between the diaspora and Somalis in Mogadishu and said that it is for the Appellant to demonstrate why he will not be able to draw on clan or network support. I have taken into account that his mother is from a different clan and her family may be less likely to send remittances; however, the Appellant’s aunt and uncle have helped him with accommodation and I find that a person or people (other than his mother, aunt and uncle) has/have helped him with the costs of journeys to the United Kingdom. His evidence is that he is not in touch with any of his father’s family. However, I find that the Appellant has not disclosed the full extent of clan/family support available to him. I reasonably infer that the person or people who helped the family in 2014 and the Appellant in 2018 and in 2019 are reasonably likely to be able and willing to send remittances to him in Mogadishu. 30. It is accepted that the Appellant has never lived in Mogadishu. He is from a minority clan. I have taken into account what the Upper Tribunal found in OA at [241] that “namely as a general rule, minority clans may struggle to offer significant levels of practical assistance;” however, there is some assistance likely to be available (see [259]). Accordingly, I find that it is likely that there will be some clan support available to the Appellant. I accept that the links necessary to obtain this assistance must be established through an existing network (see [259]). Again I take into account the “non-negotiable obligation” and the “extensive links between the diaspora and Somalis in Mogadishu”. While the Appellant does not have family who are physically in Somalia, as found by the First-tier Tribunal, he has family and diaspora links in the United Kingdom, Sweden and maybe elsewhere, which I find to be more extensive than he has admitted to. I find that it is reasonably likely that he has a network to identify links with his minority clan in Mogadishu to seek assistance with accommodation.[22]The Upper Tribunal then considered other factors and said:
“31. The Appellant has limited education. He has never worked. He left Somalia when he was a child. He has never lived in Somalia as an adult. He has never lived in Mogadishu. I take into account all the general prevailing circumstances in Mogadishu, including the volatile security situation and severe humanitarian conditions (see [222], [221] and [228] and [229] of OA). However, he is a young man in good health who I find has an existing network in Somalia and who will have access to remittances and some clan support.”
[23]The Upper Tribunal’s conclusion is at paragraphs 32 and 33 where it said this:32. I have carefully assessed the Appellant’s circumstances applying the guidance in MOJ together with that in OA, specially that in [259] (“it is likely that the links within the clan necessary to establish assistance of this nature would be identified through an individual’s network of support within Somalia, in the light of the role of network in Somali culture”). I have taken into account what is said about Somalian culture and network in OA. I find that the Appellant would have remittances from abroad and some clan support. He has received support in the United Kingdom and in Sweden and has not established that the same support would not be available to him. I find that the Appellant has not been forthcoming about the extent of his clan/family network. Taking into account MOJ in the light of OA, I conclude that relocation would not be unreasonable or unduly harsh in the Appellant’s case.33. I dismiss the Appellant’s appeal on protection grounds.” THE APPEAL Submissions

THE APPEAL

[24]T The sole ground of appeal is that the Upper Tribunal applied the wrong standard of proof when it decided that the appellant could relocate within Somalia.[25]Mr Toal for the appellant submitted that the Upper Tribunal erred in paragraphs 28, 29 and 30 of its reasons. He submitted that unless the Upper Tribunal was sure, in that it had no doubt, that the appellant’s account of events was untrue, it should give the benefit of the doubt to the appellant. The decision-maker could not exclude any relevant matter and could not exclude the appellant’s account that he had no family or clan support if there was a real possibility or a real likelihood that that account might be true. Consequently, he submitted that the Upper Tribunal erred when it found that the appellant had family or clan links which it found are reasonably likely to be wider than his aunt and uncle. It erred when it inferred that the person or people who helped the family in 2014 and the appellant in 2018 and 2019 were reasonably likely to be able and willing to send remittances to him in Mogadishu.[26]Mr Toal submitted that the question that the Upper Tribunal should have asked and answered was whether, applying the lower standard of proof in asylum cases, there was a reasonable likelihood that he would not be assisted on return to Somalia, relying on observations of Stuart-Smith LJ in Demirkaya v Secretary of State for the Home Department [1999] Imm AR 498. He submitted that the Upper Tribunal should only have rejected the appellant’s claim to have no one to support him if he returned to Somalia if it had no real doubt that he did have people to support him, relying on observations of Brooke LJ in Karanakan v Secretary of State for the Home Department [2000] 3 All E.R 449. He submitted that the Upper Tribunal should have accepted the appellant’s claim that he had no one to support him in Somalia if there was a real possibility that the account given was true, relying on observations of Lord Wilson in KV (Sri Lanka) v Secretary of State for the Home Department [2019] 1 WLR 1849. In reply, Mr Toal submitted that it may not be appropriate in cases of internal relocation to decide matters by reference to the burden of proof or consideration of evidence and it may be an assessment of risk. Approached in that way, the appellant must have the benefit of the doubt and, unless the Upper Tribunal could be sure that the appellant’s account was untrue, it should have allowed the appeal.[27]Mr Malik KC for the respondent submitted that the Upper Tribunal correctly followed the approach in Januzi. It acknowledged the need to make a holistic assessment. It did precisely that, considering the personal circumstances of the appellant, the issue of clan support and support from others and the availability of remittances. The sentences to which the appellant objected were in fact ones that involved findings of fact by the Upper Tribunal. Read in context, and bearing in mind that the Upper Tribunal applied the correct, lower standard of proof in asylum cases, there was no basis for concluding that the Upper Tribunal had erred. In oral submissions, Mr Malik submitted, more broadly, that questions of the burden and standard of proof were relevant to whether a person faced a risk of persecution. They did not arise when dealing with questions of internal relocation. There, the issue was whether it would be unduly harsh to require a person to relocate and involved a broad evaluative judgment based on all the relevant circumstances.

Discussion

[28]There is a danger of overanalysing and over-refining the relevant test. As Lord Bingham observed in relation to questions of internal relocation in AH (Sudan) at paragraph 5, “the difficulty lies in applying the test, not in expressing it”. The decision-maker must decide whether it would be unduly harsh, and so unreasonable, to expect the person claiming protection to relocate internally within his country of origin. In answering that question, the decision-maker must have regard to all the relevant circumstances of the person claiming protection and his country of origin as explained in Januzi and AH (Sudan), see the quotations set out at paragraphs 11 and 12 above. That has been described as a “holistic assessment, encompassing all relevant considerations” (see per Underhill LJ in AS (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 873, [2019] 1 WLR 5345 at paragraph 68). Having considered all the circumstances, it must decide whether it would be unduly harsh, and so unreasonable, for the person to relocate internally within his country of origin.[29]That is what the Upper Tribunal did in the present case. It identified the relevant question. It then considered all the relevant circumstances. In conducting that exercise the Upper Tribunal was aware of, and cited, the relevant country guidance cases. Those indicated amongst other things, that it was accepted that, where a person faced return to Mogadishu after a period of absence and with no nuclear family or close relatives to assist him on return, there would need to be close consideration of all the circumstances including, but not limited to, access to financial resources, prospects of securing a livelihood, availability of remittances from abroad, means of support during his time in the United Kingdom, and why his ability to fund his journey to the west no longer enabled him to secure financial support on return (see paragraph 11 and 12 of the Upper Tribunal’s reasons which set out the relevant extracts from the headnote in the country guidance case of MOJ). The Upper Tribunal also cited the extract from paragraph 14 of the headnote in the recent country guidance case of OA which said that it would only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which would be reasonable for internal relocation purposes. It also cited paragraph 5 of the headnote which said that Somali culture is such that family and social links are, in general, retained between the diaspora and those living in Somalia, and that Somali family networks are very extensive and the social ties between different branches of the family very tight.[30]Against that background, the Upper Tribunal did consider all the relevant circumstances. It considered the appellant’s personal circumstances. It considered that he would be at risk on return to his home area but would not be at risk from Al-Shabaab in Mogadishu (paragraphs 13 and 14). The appellant was from a minority clan. He had left Somalia in 2014 when he was a child and had never worked in Somalia. He had never lived in Mogadishu. The Upper Tribunal took into account the fact that he had no family or close relatives in Somalia who could assist with re-establishing himself in Somalia (see paragraph 28). He had lost contact with his mother and siblings and the obvious inference is that they could not provide support (paragraph 28). The Upper Tribunal considered that his aunt and uncle would not be able to provide support to him in Somalia (paragraphs 21 and 28). The appellant’s own resources in the United Kingdom (and before that Sweden) were limited and it was reasonably likely that they would have been used to meet his living costs (paragraph 22).[31]However, in considering all the circumstances of the case, the Upper Tribunal also noted that the appellant had paid an agent to assist him to travel illegally from Sweden to the United Kingdom in 2018. He had also travelled to the United Kingdom in 2019. There were, therefore, funds available to pay for two journeys from Sweden to London within 14 months. Those journeys were not funded from his asylum support (which was used to meet essential living needs). His aunt and uncle had not provided him with the money for those journeys. In those circumstances, the Upper Tribunal found that it was reasonably likely that he had wider family or clan links in Europe than he had admitted (paragraphs 26 to 28). The Upper Tribunal found that the appellant had not been entirely honest or had not given a complete account of how the trips had been funded. Relying on the guidance in OA, the Upper Tribunal noted that Somali family and social links gave rise to obligations to support kinsmen when they were in need. Having found that a person or people (other than his mother, aunt and uncle) had helped him with the costs of journeys to the United Kingdom, and bearing in mind the finding that the appellant had not disclosed the full extent of clan or family support available to him, the Upper Tribunal “reasonably inferred that the person or people who helped his family in 2014 and the appellant in 2018 and 2019 are reasonably likely to be able and willing to send remittances to him in Mogadishu” (paragraph 29). That was a reasonable inference which the Upper Tribunal was entitled to draw from the available evidence.[32]Thereafter, the Upper Tribunal considered the circumstances facing the appellant if he returned to Somalia and relocated to Mogadishu. It again noted that he had never worked in Somalia, had left Somalia as a child and never lived there as an adult and had never lived in Mogadishu. He had limited education. The Upper Tribunal took into account all the general prevailing circumstances in Mogadishu. It considered that the appellant was a young man in good health. He came from a minority clan and the Upper Tribunal took into account the findings in OA that minority clans “may struggle to offer significant levels of practical assistance” there would be some clan support available to the appellant. The Upper Tribunal took account of the findings in OA that there were extensive links between the diaspora and Somalis in Mogadishu. The appellant had family and diaspora links in the United Kingdom and Sweden and the Upper Tribunal found that it was reasonably likely that he had a network to identify links with his minority clan in Mogadishu to seek assistance with accommodation (see paragraph 30).[33]The Upper Tribunal then expressed its conclusion on the question of whether it would be unduly harsh for the appellant to relocate in paragraph 32. The Upper Tribunal found, having considered all the circumstances, and applying the relevant guidance, “that the appellant would have remittances from abroad and some clan support”. The Upper Tribunal concluded that relocation would not be unreasonable or unduly harsh.[34]There was no error in the approach of the Upper Tribunal. It identified the correct question. It considered the relevant country guidance cases. It carefully worked its way through all the relevant circumstances, applying the relevant guidance, and considered all the personal circumstances of the appellant and of the country concerned. It reached a conclusion on the question of whether it would be unduly harsh for the appellant to relocate to Somalia which was open to it on the evidence.[35]I do not consider that the Upper Tribunal erred by failing to give the appellant the benefit of any doubt, or by excluding the possibility that his account may be true, or by failing to express with sufficient confidence or certainty its conclusion that support from family or clan would be available in Somalia. The key circumstances are that(1) the appellant was provided with funds to pay an agent in 2018 and to travel twice to the United Kingdom(2) the appellant had not been honest and not given an adequate account of how the trips had been funded and(3) the links between the diaspora and family here and in Somalia were retained and there was a cultural obligation to help a kinsman in need. The Upper Tribunal was entitled to draw the inferences it did from those circumstances. It was entitled to express its views on those matters by reference to certain things being a reasonable inference or reasonably likely. It was not required to express itself differently. In any event, the Upper Tribunal did make its conclusions abundantly clear. At paragraph 32, it said that it found “that the appellant would have remittances from abroad and some clan support”. Nor was this a case of the Upper Tribunal excluding the appellant’s account of how the trips had been funded. The appellant had simply not given an account of where the funds came from. The Upper Tribunal found that the appellant had not been honest about the extent of the support available to him.[36]I do not consider that the cases relied upon by Mr Toal suggests that the Upper Tribunal erred. In Demirkaya, Stuart-Smith LJ was considering a situation where the individual had been arrested on a number of occasions, beaten up and deprived of food and water. On one occasion, he was subjected to an attack when his back was sliced by a bayonet. Later, in June 1993, he was again arrested and detained by the political police and subjected to the same treatment, and was also pushed through a broken third floor window, suffered cuts and was hung up outside the window. The question was whether the appellant in that case had a well-founded fear of persecution on his return. It was accepted that he would be detained at the airport. The relevant tribunal found that he would suffer some beating but held that he did not have a well-founded fear of persecution. Stuart-Smith LJ, with whose judgment Laws LJ and Jonathan Parker J., agreed held that he was left in doubt as to the degree and severity of the beating envisaged by the tribunal and, if it was anything like that to which he had previously been subject, why that would not amount to persecution. Further, if the tribunal were relying on a significant change in circumstances such that the individual would not now be at risk, the tribunal did not explain what that change of circumstances was. Stuart-Smith LJ found that there may be a real risk that someone with the appellant’s political connections who had been subject to appalling treatment before he fled the country would suffer a more than transient risk of ill-treatment on arrival at the airport. For those reasons the appeal was allowed.[37]Stuart-Smith LJ also considered briefly the question of the burden of proof and whether the passage in the tribunal’s decision which indicated that the tribunal considered that it was reasonably likely that he would be released from detention after a day or two to return home involved a misdirection on the burden of proof. Stuart-Smith LJ considered that had the point stood alone, and the decision had otherwise been sustainable, he would have been inclined to the view that that overall the tribunal had correctly applied the burden of proof. As it was, it added to his concerns about whether the decision of the tribunal could be upheld. I do not consider that the observations of Stuart-Smith LJ were intended to lay down a general rule that a tribunal will necessarily have misdirected itself if it refers to something being reasonably likely. That was not the basis of the decision, and, read in context, the concern was the reasoning of the tribunal about whether the appellant in that case would suffer ill-treatment on his return. The decision does not assist in the resolution of this case.[38]In Karanakaran, Brooke LJ observed in a passage at paragraph 469g-j relied upon by the appellant that a decision-maker “must not exclude any matters from its consideration when assessing the future unless it feels it can safely discard them because it has no real doubt that they did not occur”. However, later Brooke LJ made it clear that when dealing with questions of internal relocation, the decision-maker should simply ask would it be unduly harsh to expect the claimant for protection to settle in the country of origin. In considering that question, Brooke LJ observed that the decision-maker may have to take into account the cumulative effect of a whole range of different consideration some of which it may be satisfied had or were occurring and in respect of others it may only think there was a serious possibility that what the applicant was saying was correct (see at page 470d-g). I do not consider that any of the observations of Brooke LJ were intended to lay down strict rules on the burden of proof, or to impose a requirement that the decision-maker be sure or certain of matters, when assessing the relevant circumstances as part of the process of answering the question of whether it would reasonable to expect a claimant for protection to relocate or would be unduly harsh to do so. Indeed, Sedley LJ, with whom Brooke LJ and Robert Walker LJ agreed, said that on the critical issue of internal relocation in that case, no question of the burden or standard of proof arose. The question was simply whether, taking all the relevant matters into account, it would be unduly harsh to return the applicant to his country of origin. In any event, the approach to relocation is now set out in the judgments in Januzi and AH (Sudan), both of which considered Karanakaran. The Upper Tribunal followed the approach set out in Januzi and AH (Sudan).[39]The observations made by Lord Wilson in KV (Sri Lanka) were concerned with whether a medical expert was limited to giving evidence about the nature of the wounds which had caused scarring or could give evidence about whether the scars were consistent with the account given by the asylum seeker. They do not assist in this case. I also note Lord Wilson’s observations that appeal courts should be “particularly wary of interfering with evidential conclusions made in relation to claims for asylum, in which, among other things, the paucity and fragility of the evidence are likely to be acute” (paragraph 32).

THE RESPONDENT’S NOTICE

[40]In the circumstances, it is not necessary to determine the additional ground raised by Mr Malik, namely that no question of the burden of proof arises in relation to issues concerning internal relocation. His submission was that the burden of proof applies in relation to the question of whether the appellant has established that he has a well-founded fear of persecution. The question of whether it would be unduly harsh, and so unreasonable to relocate internally was, he submitted, a matter of evaluative judgment based on an assessment of all relevant circumstances.[41]My view is that, as a matter of principle, consideration of internal relocation is an aspect of whether a person can establish that any fear of persecution is well-founded within Article 1A of the Refugee Convention (see the observations of Lord Bingham at paragraph 7 of his judgment in Januzi). If that is correct, then, strictly, the burden is on the appellant to show to a reasonable degree of likelihood that internal relocation would be unduly harsh and so unreasonable. In practice, however, decisions of internal relocation are unlikely to be determined or influenced by considerations of the burden of proof. The appropriate approach is that set out in Januzi, AH (Sudan), and SC (Jamaica). The question the decision-maker has to decide is whether it would be unduly harsh, and so unreasonable, for a person to relocate internally within his country of origin. That will involve the decision-maker considering all the relevant circumstances. In the light of the view that the decision-maker forms of the circumstances, the decision-maker will then decide whether internal relocation is unduly harsh, bearing in mind that that is a high threshold to cross.

CONCLUSION

[42]For those reasons the Upper Tribunal did not err in its approach and was entitled to conclude on the material before it that it was not unduly harsh or unreasonable for the appellant to return to Somalia and relocate to Mogadishu. I would dismiss this appeal. LORD JUSTICE WILLIAM DAVIS[43]I agree. LORD JUSTICE COULSON[44]I agree that, for the reasons given by my Lord, Lord Justice Lewis, this appeal should be dismissed. The effect of Mr Toal’s submissions was so to skew the evaluation exercise that, as he explained in answer to a question from the court, unless the Upper Tribunal was sure that the appellant’s case could be rejected in full, it was obliged to accept it and find in his favour. I reject such an approach: it is contrary to the authorities and, I would respectfully suggest, contrary to common sense.

Cited in 1 later judgment