OA (Somalia) v The Secretary of State for the Home Department [2022] UKUT 33 (IAC)

[2022] UKUT 00033 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

Date 21 June 2021

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE KEBEDE

UPPER TRIBUNAL JUDGE FRANCES

UPPER TRIBUNAL JUDGE STEPHEN SMITH

Between

OA (Somalia)Appellant

(ANONYMITY DIRECTION made)Appellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr R. Toal, Ms G. Loughran, Ms U. Dirie, counsel, instructed by Wilson Solicitors LLP for Appellant

Mr W. Hansen, Mr M. Wyard, Ms N. Webber, counsel, instructed by the Government Legal Department for Respondent

[1]In an Article 3 "living conditions" case, there must be a causal link between the Secretary of State's removal decision and any "intense suffering" feared by the returnee. This includes a requirement for temporal proximity between the removal decision and any "intense suffering" of which the returnee claims to be at real risk. This reflects the requirement in Paposhvili [2017] Imm AR 867 for intense suffering to be "serious, rapid and irreversible" in order to engage the returning State's obligations under

Article 3 ECHR

. A returnee fearing "intense suffering" on account of their prospective living conditions at some unknown point in the future is unlikely to be able to attribute responsibility for those living conditions to the Secretary of State, for to do so would be speculative. Country Guidance

[2]The country guidance given in paragraph 407 of MOJ (replicated at paragraphs (ii) to (x) of the headnote to MOJ) remains applicable.

[3]We give the following additional country guidance which goes to the assessment of all the circumstances of a returnee’s case, as required by MOJ at paragraph 407(h).

[4]The Reer Hamar are a senior minority clan whose ancient heritage in Mogadishu has placed it in a comparatively advantageous position compared to other minority clans. Strategic marriage alliances into dominant clans has strengthened the overall standing and influence of the Reer Hamar. There are no reports of the Reer Hamar living in IDP camps and it would be unusual for a member of the clan to do so.

[5]Somali culture is such that family and social links are, in general, retained between the diaspora and those living in Somalia. Somali family networks are very extensive and the social ties between different branches of the family are very tight. A returnee with family and diaspora links in this country will be unlikely to be more than a small number of degrees of separation away from establishing contact with a member of their clan, or extended family, in Mogadishu through friends of friends, if not through direct contact.

[6]In-country assistance from a returnee’s clan or network is not necessarily contingent upon the returnee having personally made remittances as a member of the diaspora. Relevant factors include whether a member of the returnee’s household made remittances, and the returnee’s ability to have sent remittances before their return.

[7]A guarantor is not required for hotel rooms. Basic but adequate hotel accommodation is available for a nightly fee of around 25USD. The Secretary of State’s Facilitated Returns Scheme will be sufficient to fund a returnee’s initial reception in Mogadishu for up to several weeks, while the returnee establishes or reconnects with their network or finds a guarantor. Taxis are available to take returnees from the airport to their hotel.

[8]The economic boom continues with the consequence that casual and day labour positions are available. A guarantor may be required to vouch for some employed positions, although a guarantor is not likely to be required for self-employed positions, given the number of recent arrivals who have secured or crafted roles in the informal economy.

[9]A guarantor may be required to vouch for prospective tenants in the city. In the accommodation context, the term ‘guarantor’ is broad, and encompasses vouching for the individual concerned, rather than assuming legal obligations as part of a formal land transaction. Adequate rooms are available to rent in the region of 40USD to 150USD per month in conditions that would not, without more, amount to a breach of

Article 3 ECHR

[10]There is a spectrum of conditions across the IDP camps; some remain as they were at the time of MOJ, whereas there has been durable positive change in a significant number of others. Many camps now feature material conditions that are adequate by Somali standards. The living conditions in the worst IDP camps will be dire on account of their overcrowding, the prevalence of disease, the destitution of their residents, the unsanitary conditions, the lack of accessible services and the exposure to the risk of crime.

[11]The extent to which the Secretary of State may properly be held to be responsible for exposing a returnee to intense suffering which may in time arise as a result of such conditions turns on factors that include whether, upon arrival in Mogadishu, the returnee would be without any prospect of initial accommodation, support or another base from which to begin to establish themselves in the city.

[12]There will need to be a careful assessment of all the circumstances of the particular individual in order to ascertain the Article 3, humanitarian protection or internal relocation implications of an individual’s return.

[13]If there are particular features of an individual returnee’s circumstances or characteristics that mean that there are substantial grounds to conclude that there will be a real risk that, notwithstanding the availability of the Facilitated Returns Scheme and the other means available to a returnee of establishing themselves in Mogadishu, residence in an IDP camp or informal settlement will be reasonably likely, a careful consideration of all the circumstances will be required in order to determine whether their return will entail a real risk of Article 3 being breached. Such cases are likely to be rare, in light of the evidence that very few, if any, returning members of the diaspora are forced to resort to IDP camps.

[14]It will 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.

[15]There is some mental health provision in Mogadishu. Means-tested anti-psychotic medication is available.

[16]Hard drugs are not readily available in Mogadishu, and the focus of substance abuse is khat, cannabis, alcohol and tobacco. It is not reasonably likely that an ordinary returnee, without significant means or pre-existing connections to criminal elements in Mogadishu, would be able to procure hard drugs, such as heroin and cocaine, upon their return. Other country guidance given by MOJ

[17]The country guidance given at paragraph 408 of MOJ ((xi) of the headnote) is replaced with the country guidance at paragraph (14), above. Paragraph 425 of MOJ ((xii) of the headnote) should be read as though the reference to “having to live in conditions that will fall below acceptable humanitarian standards” were a reference to “living in circumstances falling below that which would be reasonable for internal relocation purposes”. DECISION AND REASONS The appellant: factual and procedural background

Introduction

[1]This appeal has been listed to considerwhether the country guidance given in MOJ & Ors (Return to Mogadishu) Somalia CG

[2014] UKUT 00442 (IAC)

continues accurately to summarise the factual position and relevant considerations.

The appellant: factual and procedural background

[2]There is a single appeal before the tribunal.The appellant, OA, was born in October 1986. At the time of the hearing before us he was aged 34. Until the age of five, he lived in Mogadishu with his family. In or around July 1992, following the commencement of the civil war in 1991, OA travelled to Kenya withhis mother. He has 11 siblings, eight of whom were born before the family fled Somalia; the youngest three were born in Kenya. The siblings are said to live in a variety of locations around the world, including Canada, Finland, Holland, Greece and the UK. His father died in Somalia.

[3]In April 2002, OA’s mother left Kenya and claimed asylum in this country. She was recognised as a refugee on the basis that, as a member of a minority clan, she was at risk of being persecuted by the majority Hawiye and Darood clans. She now holds indefinite leave to remain. OA arrived here shortly afterwards and claimed asylum on 2 July 2002. On 9 August 2002, he was granted asylum “in line” with his mother, followed by indefinite leave to remain on 10 December 2003. That is the status the appellant continues to enjoy (as confirmed by Mr Hansen in his closing submissions), subject to the resolution of these proceedings which concern the Secretary of State’s decision to revoke his protection status, and refuse the human rights claim he made in the context of resisting the Secretary of State’s decision to deport him to Somalia.

[4]OA has a long history of criminal offending in this country, which began while he was still a child. He now has 39 convictions for 80 offences, committed over a period of 17 years. In the time since his arrival, OA has spent over ten years serving sentences of imprisonment and in detention.

[5]OA’s early offences led to the Secretary of State sending “warning letters” to him on three occasions: April and July 2008, and in January 2013. Each letter stated that the Secretary of State had “taken note” of certain of the appellant’s then recent convictions and had decided not to pursue deportation action on those occasions,but warned him that he faced deportation in the future, should his conduct continue.

[6]On 27 August 2014 the appellant was sentenced to 16 months’ imprisonment for burglary with intent to steal, contrary to section 9(1)(a) of the Theft Act 1968, following an earlier plea of guilty.This offence triggered the automatic deportation provisions of the UK Borders Act 2007, as set out by the Secretary of State in a decision to deport the appellant dated 19 December 2014.

[7]On 10 April 2015, the Secretary of State notified the appellant that she intended to cease his refugee status under Article 1C of the Refugee Convention. On 1 May 2015, she informed the United Nations High Commissioner for Refugees (“the UNHCR”) of her intention to cease the appellant’s refugee status. On 9 October 2015, the Secretary of State signed a deportation order against the appellant, refused his human rights and protection claim, and ceased his refugee status under

Article 1C(5) of the Convention

. It is that decision that is under appeal in these proceedings.

Procedural background

[8]The appellant’s appeal was originally heard and allowed by First-tier Tribunal Judge Beach, in a decision promulgated on 9 May 2018, following a hearing on 5 April 2018. That decision was the subject of a successful appeal by the Secretary of State to the Upper Tribunal. On 30 August 2018, Upper Tribunal Judge Kopieczek found that the decision of Judge Beach involved the making of an error of law, and directed that the decision be remade in the Upper Tribunal, with certain findings of fact preserved. Upper Tribunal Judge Coker conducted the resumed hearing, and dismissed the appellant’s appeal in a decision promulgated on 29 January 2019. The appellant appealed to the Court of Appeal. On 30 September 2019, Sir Ross Cranston granted permission to appeal. On 21 November 2019, the appeal was allowed with the consent of both parties, pursuant to an order of Master Bancroft-Rimmer. At paragraph 2 of the Master’s order, the entire composite decision of the Upper Tribunal was set aside, expressly including the “error of law” decision dated 30 August 2018, in addition to Judge Coker’s decision remaking the appeal. No findings from the decisions of either Judges Kopieczek or Coker were preserved.

[9]Pursuant to the order of Master Bancroft-Rimmer, the appeal returned to the Upper Tribunal in order for “a fresh determination of the Appellant’s appeal” (paragraph 3). In light of Judge Kopieczek’s “error of law” decision being set aside, with no findings preserved, it was necessary for the remitted hearing in the Upper Tribunal to consider, first, whether the decision of Judge Beach involved the making of an error of law, and, if so, whether it should be set aside. An error of law hearing took place on 25 February 2020 before McGowan J, sitting as a Judge of the Upper Tribunal,and Upper Tribunal Judge Kebede.

[10]By a decision promulgated on 7 April 2020, McGowan J and Judge Kebede found that the decision of Judge Beach involved the making of an error of law, set it aside with no findings of fact preserved, and directed that the appeal be remade in this tribunal. Mr Toal, who has represented the appellant at all stages in this tribunal and above, suggested at the hearing on 25 February 2020 that this appeal may be a suitable vehicle for a further Somalia country guidance case, which led to the appeal being designated as such, and a series of case management review hearings took place.

[11]The true scope of the 7 April 2020 error of law decision, in particular its approach to the findings of fact reached by Judge Beach, has been a matter of some dispute in these proceedings.Judge Beach reached a number of findings of fact that Mr Toal contends are favourable to OA’s case, and which should form the foundation for our findings of fact unless the Ladd v Marshall criteria apply. Those findings include, at paragraph 68,a finding that the appellant’s siblings would be unlikely to assist him financially, due to the harm the appellant’s drug abuse has caused to their relationships; at paragraph 70 that OA has no family or friends in Somalia, that he would have minimal financial assistance and knew little Somali, and that he would stand out as a returnee from the West upon his arrival. At a case management hearing on 19 April 2021, Mr Toal submitted that those findings were not infected by any error of law and, as such, should have been preserved. He invited us expressly to (re)preserve those findings, revisitingthose aspects of the 7 April 2020 error of law decision promulgated by McGowan J and Judge Kebede. We refused to do so, for the reasons set out below.

[12]We consider that Mr Toal’s submission that there were key matters upon which the appellant was entirely successful overstates the position; see, for example, paragraph 66 of

Judge Beach’s decision, with emphasis added:

“The evidence of the appellant and of his mother was that neither of them had any connections in Somalia. There had been a previous reference by the mother to distant relatives of friends living in Somalia but she states that they are no longer there. It is hard to know whether this is the truth or whether the appellant and his mother simply want to distance themselves from any connections in Somalia.”

[13]The 7 April 2020 error of law decision sets out why Judge Beach’s findings of fact involved the making of an error of law.At [10], the presenting officer made a range of submissions attacking Judge Beach’s findings of fact: the judge had failed to consider material evidence, resolve conflicts, and give clear reasons on central issues. Paragraph 15 outlines those submissions in depth, demonstrating that they draw on the established jurisprudence relating to challenging findings of fact (“the judge had erred by failing to give proper reasons…”, “the judge made no proper findings…”, “there was a failure to consider the Facilitated Returns Scheme…”, “the judge departed from the country guidance and failed to explain how that was justified…” and so on).The detail of presenting officer’s submissions is important because the panel later expressly accepted them.

[14]At [20], the panel found that Judge Beach had erred by departing from the then extant country guidance in MOJ concerning the availability of employment in Mogadishu, conflating new country evidence concerning the lack of skilledemployment with the many unskilled opportunities available in Mogadishu. She had departed from other aspects of MOJ, creating a sub-category of risk not found in MOJ,concerning those said to be unable to access IDP camps (IDP stands for “internally displaced person”). The judge’s findings about the appellant’s likely financial circumstances in Mogadishu failed to take into account the Facilitated Returns Scheme. The panel concluded in these terms:

“Accordingly, we agree with [the Secretary of State] that there was a failure by the judge to give clear and proper reasons for reaching the conclusions that she did about the appellant’s circumstances on return to Somalia and we conclude that her decision is also unsustainable on that basis.”

At [21], the panel went onto say:

“…we consider the judge’s decision on protection, Article 3 and Article 8 claims must be set aside… The case will therefore be re-listed for a resumed hearing before the Upper Tribunal… to re-assess and make proper findings on the appellant’s circumstances on return to Somalia and to consider the risk on return in light of those findings in the context of the Refugee Convention, humanitarian protection and Article 3, as well as considering Article 8.” (Emphasis added)

[15]Properly understood, therefore, the operative reasoning of the panel’s error of law decision was that the findings of fact reached by Judge Beach had involved the making of an error of law, that those findings had to be set aside in their entirety, and that “proper” findings had to be made. Mr Toal’s submissions did not seek to engage with the reasoning of the Panel on any of the established bases for challenging findings of fact, but rather addressed the prejudice to the appellant of having to revisit those findings, for example submitting that it was “oppressive” to cross-examine the appellant in relation to issues upon which he was “entirely successful”. For the reasons given above, we disagree; as found by McGowan J and Judge Kebede, Judge Beach’s findings of fact were infected by the errors highlighted by the Secretary of State, including a failure to give sufficient reasons.Isolating certain findings of fact reached as part of the judge’s broader (and impugned) findings of fact is not possible. We see no reason to revisit the 7 April 2020 decision’s approach to Judge Beach’s findings of fact and, once again, we decline to do so.

Other case management issues

[16]An hour before the Case Management Review Hearing (“CMRH”) on 19 April 2021, the appellant made a written application to expand the grounds of appeal to include

Article 4 ECHR

, on account of the exploitation he contended that he would face at the hands of the “gatekeepers” to IDP camps in Mogadishu. We refused the application, and gave the following reasons in the note of our hearing, issued on 19 April 2021:

“4. The application was refused. Bearing in mind the overriding objective and the need to decide cases fairly and justly, in light of the existing and well-established focus of these proceedings, we considered that the requirements of fairness were such that the proposed new ground of appeal should not be permitted at this very late stage. These proceedings have a lengthy history, having already been the subject of a substantive appeal before the Upper Tribunal and an onward appeal to the Court of Appeal. At no stage had the appellant sought to expand his grounds of appeal in this way, even though he has been represented by the same experienced firm of immigration solicitors throughout. The case management timetable in these country guidance proceedings is already well under way. Expanding the scope of the proceedings at this late stage could prejudice the final hearing date, and lead to considerable expense and delay. The experts have not focussed on the relationship between the IDP ‘gatekeepers’ and human trafficking thus far, and expanding the scope of the proceedings may require the experts to revisit their evidence, with the potential for delay and inconvenience. To the extent the conduct of the ‘gatekeepers’ is relevant to the appellant’s circumstances upon return, it will be possible for such matters to be considered in any event, in the context of the existing issues already before the tribunal.”

[17]At the substantive hearing, we treated the appellant as a vulnerable witness in line with the Joint Presidential Guidance Note No. 2 of 2010. We ensured that regular breaks were available to him, and directed Mr Hansen to direct his questions to the appellant with an appropriate degree of sensitivity. No concerns were raised during the hearing by Mr Toal about the appellant’s ability fully and properly to participate in the proceedings.

[18]On the penultimate and final days of the re-hearing, we admitted medical reports by Dr N. Galappathie, a consultant forensic psychiatrist, concerning the appellant’s mother (dated 17 June 2021) and the appellant (dated 20 June 2021) respectively. While it was unfortunate that these reports were adduced at such a late stage in breach of a number of earlier case management directions, we considered that it was in the interests of justice to admit them.

[19]Following the conclusion of the hearing, there were a number of further developments:a. On 17 August 2021, those representing the appellant wrote to the Tribunal enclosing evidence from other proceedings involving the deportation of another Somali to Somalia, in which the Secretary of State appears to have taken steps to arrange medical and other provision for that individual upon their return. The name of the individual and all other identifying details had been redacted. The Secretary of State subsequently provided copies of her correspondence in return.In our judgment, that the Secretary of State chose to adopt certain measures in an individual case (the details of which we are not privy to) does not mean that she is compelled to adopt equivalent measures in all other cases concerning removal to Somalia.We address the significance of this material in further depth at paragraph 128, below.

b. On 31 August 2021, we gave the parties the opportunity to make further written submissions of the impact, if any, of Ainte (material deprivation - Art 3 - AM (Zimbabwe))

[2021] UKUT 203 (IAC)

on their submissions in this matter. We are grateful to both parties for their responses, both dated 21 September 2021, which we will consider in due course.

c. On 8 October 2021, the appellant applied for permission to rely on further evidence, namely that, following the conclusion of the fact-finding hearing on 21 June 2021 (at which, as we set out below, his oral evidence had been that he had stopped using heroin and was taking prescribed methadone), he had relapsed into heroin use, and had been attacked by a person to whom he was said to owe a drugs-based debt, with the result that his jaw had been broken. The evidence was in the form of a letter from a person working at the appellant’s hostel dated 8 October 2021. We invited submissions in response from the Secretary of State, which we received on 12 October 2021, requesting us not to admit the evidence. We deal with this in our case-specific analysis, below.

d. On 14 October 2021, those representing the Secretary of State informed us that on 24 September 2021 the Secretary of State had amended the Facilitated Return Scheme, with the effect that OA would now be eligible for a resettlement grant of £750 upon return to Somalia (£500 is loaded to a pre-payment card upon departure; a further £250 is available via the International Organisation for Migration in-country within the first month; a further £500 is available for those who meet the policy’s definition of “vulnerable”). The current version, 9.0, no longer provides that a person is ineligible because they have “pursued an immigration appeal beyond the First-tier Tribunal or its earlier equivalent in the past”, which wasa feature of earlier versions of the policy (and so would have been in force when earlier country guidance concerning return to Somalia was given).

THE ISSUES

[20]In Judge Kebede’s note of a CMRH held on 10 November 2020, the scope of the intended country guidance was said to be:

“It was clarified and confirmed at the CMRH that the country guidance will provide an update to MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 to address the situation in Mogadishu in general, in terms of the level of violence for the purposes of Article 15(c) of the Qualification Directive and the Article 3 risks on return. This will include, but will not be limited to, the risks to minority clan members and the risks associated with living in an IDP camp or being unable to find a place in an IDP camp.”

[21]The parties subsequently proposed a list of country guidance issues which appeared to focus primarily on the appellant’s individual circumstances, rather than identifying the broader country guidance issues identified by Judge Kebede for resolution. Mindful of the identified need to consider whether the position had changed since MOJ in light of the agreed issues pertaining to the appellant’s individual case, we proposed the following reformulated country guidance issues in the terms set out below. We discussed these with the parties at a further CMRH on 10 May 2021. At the CMRH on that date, the parties were content with the issues as reformulated by the panel. In our view, these questions address the same underlying issues identified by the schedule of issues originally agreed between the parties, and ensure that all relevant factors are considered in the appellant’s appeal, but are expressed in terms which may be of assistance to other appellants in similar circumstances to this appellant, thereby enabling this decision to be specified as country guidance for the purposes of section 107(3) of the 2002 Act.

[22]The agreed reformulated country guidance issues are therefore as follows:(1) Does an ‘ordinary civilian’ returning to Mogadishu following a period in the UK face a real risk of being persecuted or subjected to serious harm contrary to

Article 3 of the ECHR

or paragraph 339C of the Immigration Rules?

(2) What factors are relevant to whether such a returnee will be able to establish themselves in Mogadishu?

(3) What factors go to whether such a returnee will be compelled to seek accommodation in an IDP camp, and whether they will be able to do so?

(4) If a returnee is successful in securing accommodation in an IDP camp, would that entail a real risk of being persecuted or serious harm or cruel, inhuman or degrading treatment owing to the conditions in which the returnee will live?

(5) If even accommodation in an IDP camp is not a realistic prospect, what are the reasonably likely alternatives, and would they entail a real risk of being persecuted or serious harm or cruel, inhuman or degrading treatment owing to the conditions in which the returnee will live?

(6) What impact, if any, does membership of a minority clan have on the resolution of issues 1 to 5?

[23]Following the CMRH, on 26 May 2021, those representing the appellant wrote to the Tribunal requesting that the matter should no longer be regarded as suitable for giving country guidance. Mr Toal expanded upon the letter at the final CMRH, held on 8 June 2021.To the extent it was within the gift of the Panel to do so, we refused that application, but noted that the decision as to whether to designate a decision of the tribunal to be country guidance lies with the President of the Upper Tribunal (IAC), as set out in the Presential Guidance Note 2011 No. 2, amended by Mr Justice Lane, President, on 21 May 2021. To that end, the resumed hearing was conducted on the basis that the appeal had been identified as being potentially suitable to be heard as country guidance.