AAW v The Secretary of State for the Home Department

An expert witness must comply with the duties in the Senior President’s Practice Direction. The witness must be objective, independent, fully informed and responsive to material facts that may detract from the opinion. A report that selectively ignores binding country guidance or contrary evidence may be treated as informed journalistic advocacy and given little weight.

In assessing an ECHR Article 3 claim by a returnee to Mogadishu, the Tribunal must apply the country-guidance assessment to all relevant circumstances. The claimant must show why he cannot obtain family, clan, financial or remittance support, or access a livelihood. Absence of nuclear-family support or membership of a minority clan does not alone establish a real risk of destitution or Article 3 ill-treatment.

The appellant, a Somali national, appealed against a deportation order following convictions including wounding with intent. The First-tier Tribunal dismissed his appeal on all grounds. Upper Tribunal Judge O’Connor set that decision aside for material errors in its Article 3 assessment and directed that the decision be remade on that ground alone.

On remaking, the appellant relied on his minority-clan membership, lengthy absence from Mogadishu, lack of close family there, asserted atheism, offending history, past alcohol misuse and an alleged inability to obtain work. He relied in particular on a report by Mary Harper and on the country guidance in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). The central issue was whether his return to Mogadishu would expose him to Article 3 ill-treatment or conditions below the humanitarian-protection threshold.

1. Appeal dismissed. The Upper Tribunal substituted a fresh decision dismissing the appeal on Article 3 grounds.

2. The Tribunal applied MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). Where a returnee has no nuclear family or close relatives in Mogadishu, the assessment must address all relevant circumstances, including prior circumstances in the city, absence, clan connections, resources, remittances and realistic prospects of a livelihood. Humanitarian-protection conditions arise only for a person with no clan or family support, no remittances and no real prospect of obtaining a livelihood.

3. The appellant had no close family in Mogadishu and no established present financial resources. However, his family had previously enjoyed substantial support from an influential Hawiye patron, and his Benadiri community had an economically active presence in Mogadishu. His parents’ experience also showed that informal accommodation did not necessarily entail Article 3 conditions.

4. The appellant had work experience and relevant construction, cleaning and information-technology qualifications. These gave him a realistic prospect of employment, particularly in construction. He could also apply for a facilitated-return grant. He had therefore not shown that he could not obtain a livelihood.

5. The asserted risks from atheism, criminal convictions, alcohol use and revenge were not established on the evidence. There was no reason to think that atheism or the earlier sexual-offence conviction would become known, and no reliable evidence of a real Article 3 risk if they did. The revenge allegation was speculative.

6. Mary Harper’s reports were given little weight as expert evidence. They selectively disregarded country guidance and contrary material, relied upon speculation and unidentified sources, and did not demonstrate the objectivity or comprehensive review required by the Senior President’s Practice Direction. They remained relevant only as the views of an experienced journalist, assessed with the other evidence.

7. An anonymity order was made under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• Upper Tribunal (Immigration and Asylum Chamber): In [2015] UKUT 673 (IAC), the Tribunal remade the Article 3 decision after the First-tier Tribunal’s determination had been set aside, and dismissed the appeal.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge O’Connor, by a decision dated 14 July 2015, set aside the First-tier Tribunal’s determination for material errors of law in its Article 3 reasoning and directed remaking in the Upper Tribunal.

• First-tier Tribunal: A panel dismissed the appeal against the deportation decision on all grounds in a determination promulgated on 29 April 2015.