Appeal Number: PA/06048/2017 (Miss HA AND SSHD)

In this appeal Upper Tribunal judge Kebede noted Mr Masood’s submissions as follows and dismissed the appeal brought by the Secretary of State:

“Mr Masood submitted that the judge had not erred in law and was entitled to follow the country guidance. In that respect he relied upon the case of SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 in which Lord Justice Stanley Burton stated at paragraph 67: “In my judgment a Country Guidance determination of the Upper Tribunal (Immigration and Asylum Chamber) remains authoritative unless and until it is set aside on appeal or replaced by a subsequent Country Guidance determination.”

It was Mr Masood’s submission that the judge had looked at all the evidence before her and had noted that the reports referred to the situation in Mogadishu improving but that risks remained. The finding the judge made regarding the durability of the situation was one that was open to her and was in accordance with paragraph 363 of the decision in AMM. The grounds were no more than a disagreement with the judge’s decision. With regard to the appellant’s own circumstances, it was found in AMM that clan-based violence was no longer relevant and that following the arrival of Al-Shabab the majority clans who were previously powerful were no longer powerful. The appellant’s experiences related to his circumstances previously when there was a distinction between the minority and majority clans. The judge adequately addressed the appellant’s personal circumstances.

Ms Martin made no further submissions in response.

Consideration and findings

It is the case that the country guidance in AMM, in particular that relating to humanitarian protection as regards the situation in Mogadishu, is to be reviewed in an appeal listed for hearing in December 2013. Nevertheless, AMM currently remains authoritative guidance and, as found in SG (Iraq), the Tribunal was entitled to follow it.

Judge Thomas was fully aware, as she stated at paragraph 17 of her determination, that the latest information indicated that the situation in Mogadishu had improved following the withdrawal of Al-Shabab. She was fully aware of the Upper Tribunal’s view, expressed in paragraph 363 of AMM, that it was open to judicial fact-finders to conclude that the necessary element of durability had been satisfied, on the basis of new evidence arising since the guidance was given. Accordingly, she gave careful consideration to that evidence and, at paragraph 16, assessed the background information before her. She referred to several reports in the documentary evidence before her and considered not only those relied upon by the appellant, but also, as is apparent from her comment at the end of paragraph 16, those relied upon by the respondent. Whilst she did not quote extensively from the latter, it is clear that she took into account all the evidence from both parties. It is not the case, as asserted by the respondent, that she failed to engage with the changes that had taken place in Mogadishu. As such, it was open to her to conclude, in the light of the background information to which she referred, that the changes resulting from Al-Shabab’s withdrawal were not sufficiently durable to cause her to depart from the country guidance in AMM. I would agree with Mr Masood that the grounds of appeal are, in that respect, no more than a disagreement with her findings on the evidence before her.

With respect to the ground relating to the appellant’s personal circumstances, that was not a matter particularly emphasised by Ms Martin as an independent and discrete issue and indeed I had to enquire whether that ground was pursued. It is the case that the judge did not set out in paragraph 17 an in-depth analysis of the appellant’s circumstances. However it is plain, from her findings at paragraph 15 that that was a matter to which she had full regard. It is also plain, from her findings at paragraph 17, that she was fully aware of the guidance in AMM, as set out at paragraph 1 of the head-note and in paragraph 594 of the main body of the decision, and quoted at paragraph 12 of her determination, of the exceptions to the general risk of Article 15(c) harm for those returning to Mogadishu after a significant period of time abroad, namely for those persons connected with powerful actors or belonging to a category of middle class or professional persons. That was a matter to which she gave specific consideration and upon which she made reasoned findings. Although not a matter specifically referred to by the judge, Mr Masood made the further, valid point that the appellant’s circumstances prior to leaving Mogadishu arose as a result of the distinction at that time between majority and minority clans, a distinction that the Upper Tribunal found in AMM was no longer of significance following the arrival of Al-Shabab. Accordingly, it seems to me that the judge’s findings at paragraph 17 adequately addressed the question of risk on the basis of the appellant’s own, individual circumstances.”

Read (here).