Secretary of State for the Home Department v FY (Somalia)

On an appeal from a specialist immigration tribunal, disagreement with the tribunal’s factual assessment is insufficient. Appellate intervention requires a material error of law, such as a perverse finding or clear misdirection.

Country guidance must be applied by assessing all the individual circumstances. Guidance that clan membership may assist a returnee does not prevent a tribunal finding that a person who left Somalia as a child, has been absent for many years and lacks family ties may struggle to obtain clan support. The existence of an economic boom does not require every returnee to be treated as capable of securing work.

The Secretary of State sought to deport FY, a Somali national who had left Somalia aged nine and had lived in the United Kingdom since 2002. Following criminal convictions, a liability-to-deportation decision was made under section 3(5)(a) of the Immigration Act 1971.

The First-tier Tribunal allowed FY’s appeal on article 3 grounds, finding a real risk that he would have no alternative to living in conditions below acceptable humanitarian standards. The Upper Tribunal dismissed the Secretary of State’s appeal: [2015] UKAITUR DA003432014. The central issue was whether the First-tier Tribunal had misapplied country guidance concerning clan support and employment prospects in Mogadishu.

1. Appeal dismissed. The First-tier Tribunal’s conclusion that FY might have to live in conditions amounting to a breach of article 3 was open to it on its findings of fact. The Upper Tribunal was entitled to uphold that conclusion.
2. The relevant country guidance in MOJ and others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) required a careful assessment of all the circumstances where a returnee had no nuclear family or close relatives in Mogadishu. Relevant considerations included family or clan associations, financial resources, remittances, means of support in the United Kingdom and prospects of securing employment or self-employment.
3. The guidance did not preclude a finding that a person’s lengthy absence and lack of family ties would make it difficult to obtain help from his clan. The First-tier Tribunal’s finding was consistent with the guidance, which treated family support as more important than clan ties in the circumstances assessed.
4. The tribunal was also entitled to find that FY had little prospect of securing a livelihood. His limited training and work experience, unfamiliarity with Somalia, lack of family support, criminal record and history of mental-health and alcohol problems were relevant factors. The reference to the economic boom did not require a finding that every returnee could obtain work.
5. Following AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] AC 678, and Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, appellate courts should approach appeals from specialist tribunals with appropriate caution and should not substitute their own factual assessment unless there is a clear misdirection or perversity. No such error was shown.

• Court of Appeal (Civil Division): Appeal dismissed.
• Upper Tribunal (Immigration & Asylum Chamber): The Secretary of State’s appeal was dismissed: [2015] UKAITUR DA003432014.
• First-tier Tribunal: FY’s appeal against deportation succeeded on article 3 grounds.