AAW v The Secretary of State for the Home Department

Permission having been granted to appeal against the determination of the First-tier Tribunal by which his appeal against a deportation order was dismissed, the appellant’s appeal came before Upper Tribunal Judge O’Connor on 13 July 2015. By a decision dated 14 July, Judge O’Connor found that the First-tier Tribunal had made errors of law such as to require the determination to be set aside. His reasons for so finding are set out in the decision that is annexed hereto. Judge O’Connor said this about the circumstances leading to the decision to make a deportation order:

For reasons that are not in dispute between the parties, it is not necessary to look any further into the determination of the First-tier Tribunal other than to say that their finding that section 72(2) of the Nationality, Immigration and Asylum Act 2002 applied in this case stands, so that the appellant cannot succeed in his appeal on asylum grounds. Therefore, as Mr Gilbert, realistically, does not pursue either any grounds founded upon rights protected by Article 8 of the ECHR we are concerned only with the question of whether, upon return to Mogadishu, the appellant would be subjected to ill-treatment or would find himself living in conditions such as to amount to an infringement of Article 3 of the ECHR.

The appellant, who is a citizen of Somalia , was born in 1974 and so is now about 40 years old. He lived with his parents and siblings in Moga dishu . They are of the Shanshiya clan, which is a sub clan of the Benadiri and so a minority clan. That was a matter of fact initially in dispute but Mr Jarvis does not now pursue that challenge and so the appellant is to be considered to be of the clan he asserts. The appellant’s father was a merchant, selling shoes and some livestock. As the appellant confirmed in his oral evidence before us, the family had the patronage of a local Hawiye man as a result of which the appellant’s father prospered in his business and the appellant was able to attend school. They owned and lived in their own house, which had six bedrooms.

Despite that patronage from a majority clan member , the appellant’s family, like many others, felt unsafe as the civil war of the early 1990’s took hold. They therefore left Mogadishu and moved to Marka on the south coast of Mogadishu , where the appellant’s father rented a house and opened a new shop. Unfortunately, after two years or so, the fighting spread to Marka and so the family moved across the border into Kenya , where they lived in a refugee camp.

In 1996 the appellant’s parents decided to return to Mogadishu taking the appellant and his siblings with them. He said that other relatives remained in the camp in Kenya . Despite the continuing violence being perpetrated in Somalia , and the precarious position, generally, of members of minority clans at that time in Somalia , the family was able to travel back to Mogadishu by bus. In oral evidence the appellant explained how this was possible, given that they were of a minority clan and on that basis at extreme risk when passing through the many militia controlled checkpoints they encountered on their journey. He said that the bus driver bribed his way through the checkpoints outside Mogadishu and, when asked about how they got through the checkpoints within Mogadishu , the appellant explained that:

The appellant explained that when his father decided that they should return to Mogadishu , he contacted the man of the Hawiye clan, his connection with whom had enabled him to run his business and to own property in Mogadishu , and made with him certain arrangements. The family would return and this man had agreed to buy their house for $40,000. The appellant’s father would then rent a house and start a new business. Unfortunately, when they arrived in Mogadishu they found that others from a majority clan had moved into their house and taken it over and so, for a few months, they stayed at the home of the man trusted by his father who had agreed to buy the house. After that man had secured vacant possession , the sale proceeded and so the appellant and his family moved into a rented house.

However, the appellant had described also that when he and his brother left Mogadishu in 2008, the family was then living “in an IDP camp” in Mogadishu . In oral evidence he explained that this was because “there was no peace”. That decision was certainly not driven by a shortage of funds because they had the proceeds of the sale of their house. It emerged in evidence that the “IDP camp” was a vacant government building, in which the appellant’s parents remained resident after their two sons had departed. Each son received from their parents the sum of $5,000 to fund their journey, their parents retaining for their own use the remaining $30,000.

The appellant, who was provided with a Danish passport by the agent, travelled to an airport to the north of Mogadishu from where he travelled by air to the United Kingdom . He claimed asylum, unsuccessfully, on arrival and again, in a false name in 2006. His detailed immigration and appeal history is well known to the parties and it is not necessary to rehearse it here.

It is Mr Gilbert’s submission that the appellant should succeed in his appeal on the basis that he falls with the category of persons identified in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) as being entitled to international protection in that the appellant will be returning with no clan or family support; not in receipt of remittances from abroad and with no real prospect of securing access to a livelihood on return. This is because the appellant’s minority clan will not be able to assist him and without clan or family support he will be unable to find work and so will find himself destitute and living in an IDP camp in conditions that will fall below what is permissible in terms of the protection provided by Article 3.

Bringing matters up to date, the appellant confirmed that his father died in 2001 after which his mother remained in the same building, d escribed by him as “living in a refugee camp”. He kept in touch with his mother until her death in 2013. He said he lost his faith not long after he arrived in the United Kingdom and so he does not go to a mosque. His brother now lives in Birmingham . Last September the appellant told him that he had become an atheist. He said that his brother “did not like that” and has cut off all ties with him. In oral evidence the appellant said that he had continued to talk to his sister in law and that she was beginning to understand his position.

Finally, the appellant says that he would be at risk on return from a revenge attack, because the man he stabbed in committing the offence for which he has been imprisoned is also a Somali national and as news travels fast between the United Kingdom and Mogadishu this man’s family would find out where is and would attack and possibly kill him.

In Mr Gilbert’s submission, the appellant’s difficulties on return will be exacerbated by other factors. He has a history of criminal offending, including sexual assault, a category of offence that offends social mores in Somalia . He has also a history of addiction to alcohol and, on that basis as well, he will attract severe censure and, as alcohol is illegal but available, this will also act as a barrier to securing accommodation and employment. Mr Gilbert has set out in his skeleton argument a detailed analysis of all of the risk factors he identifies and I have had careful regard to all that he has written.

Mr Gilbert relies upon the country guidance provided by MOJ and Ors and upon a lengthy written report and supplementary report provided by M s Mary Harper who was one of three witnesses presented by the appellants in MOJ & Ors as expert country w itnesses. Mr Jarvis describes M s Harper’s reports as “extraordinary” in that they are , in his submission, lacking the objectivity demanded of the evidence of a person put forward as an expert witness and because, he submits, she has advanced the same opinions as were rejected by the Tribunal in MOJ & Or s , substantially relying upon the same material upon which her evidence in 2014 was based and she has simply expressed disagreement with or simply ignored the findings in the country guidance offered in MOJ & Ors where they are contrary to the opinion she expresses.

Mr Jarvis invited the Tribunal to categorise these reports not as expert evidence at all but as the expression of an inaccurate journalistic view that should be given no weight at all. On the other hand, Mr Gilbert points out that the Tribunal in MOJ & Ors did not reject M s Harper’s evidence in its entirety and he emphasises also that in the pres ent reports M s Harper deals with areas outside the focus of the country guidance given previously.

I shall examine those competing submissions below but as Mr Gilbert correctly points out, the appellant’s case is not founded exclusively upon M s Harper’s evidence and so, even if her evidence is not regarded as helpful, that does not mean that on that account alone the appeal must fail.

This is a substantial decision of the Upper Tribunal, running to more than 400 paragraphs. The Tribunal had before it a vast array of documentary evidence as is identified in an annex, that list of materials extending to more than 35 pages. This country guidance decision was considered recently by the ECtHR in R.H . v Sweden (Application no 4601/14 ) , published on 10 September 2015. At paragraph 67 the Court said that:

The headnote reproduced below is the Tribunal’s attempt to distil key aspects of the guidance provided into a concise summary but this does not, as we shall see, cover the full extent of the reasoned findings made:

Mr Gilbert draws on other references and findings that did not find their way into the headnote . Thus:

at para 343, the Tribunal cited from a 2014 UNHCR report “that persons belonging to minority clans… remain at particular disadvantage”. But here the full extract is necessary to give context to that observation:

At para 353 that “it may be that, like other residents of Mogadishu , he would be more likely to succeed in accessing a livelihood with the support of a clan or nuclear family .“ But, again, that observation must be read together with the sentence that precedes it:

At para 342 “ for a returnee to Mogadishu today, clan membership is not a potential risk factor but something which is relevant to the extent to which he will be able to receive assistance in re-establishing himself on return, especially if he has no close relatives to turn to upon arrival. There remains an aspect of protection to be derived from clan membership .”

Next, Mr Gilbert draws upon the COIR of March 2015, which of course post dates the decision of MOJ and Ors. He points to para 1.3.4 that states that minority clan members, who usually lack the support networks available to those of majority clans as a result suffer discrimination. Mr Gilbert relies upon the observation that follows: “and have experienced human rights abuses…” but that is expressed in the past tense, which is confirmation of that which is not in dispute.

Para 1.3.6 of the COIR does not say, as the skeleton argument suggests, that minority clan members will find themselves in IDP camps, simply that those who do may find themselves exposed to ill-treatment. It is highly relevant in this particular case that the appellant’s mother, with whom he remained in contact until her death in 2013, had been living in what the appella nt has referred to as either an IDP camp or a r efugee camp for well over ten years since she became a widow yet no suggestion has been made that she was ever subjected to ill-treatment.

Mr Gilbert draws attention to other reports also, but where those reports were before the Tribunal in MOJ & Ors or are based upon source material that was, it is not necessary to discuss it further as it is subsumed within the guidance given.

M s Harper, who describes herself at the head of her reports as:

Given the challenge raised by Mr Jarvis to the objectivity of Miss Harper’s evidence, before descending into a detailed examination of those reports it is helpful to look at what is required of an expert witness.

In MOJ & Ors the Tribunal said this:

to provide information and express opinions independently, uninfluenced by the litigation;

to consider all material facts, including those which might detract from the expert witness’ opinion ;

to be objective and unbiased;

to avoid trespass into the prohibited territory of advocacy;

to be fully informed;

to act within the confines of the witness’s area of expertise; and

to modify, or abandon one’s view, where appropriate. ”

A witness, if put forward as an expert witness, will not be treated as such if he or she does not meet the requirements demanded by the Senior President’s Practice Direction. That does not mean that his or her evidence falls to be disregarded, but any opinion offered that is unsupported by a demonstration of the objectivity and comprehensive review of material facts required of an expert witness is likely to be afforded little weight by the Tribunal. In particular, a witness who does not engage with material facts or issues that might detract from the view being expressed risks being regarded as an informed advocate for the case of one of the parties to the proceedings rather than an independent expert witness.

In my judgment Mr J arvis is correct to say that M s Harper’s reports are quite remarkable. In short, she maintains the views and opinions she expressed in her evidence before the Tribunal in 2014 and where those opinions are contrary to the country guidance that resulted, she either expresses disagreement or simply disregards the country guidance altogether.

She insists that some areas of Mogadishu “still harbour significant elements of the Islamist group Al Shabaab ” whereas the Tribunal found that the withdrawal of Al Shabaab from the capital was complete and durable. At paragraph 6 of her first report she asserts as if it were an established fact that the appellant’s physical appearance would readily disclose the fact that he is of the Reer Hamar and so “would put him at immediate risk of ill-treatment as he would be perceived by others to be a member of a minority clan”. At paragraph 337 of MOJ & Ors the Tribunal rejected that view, finding that:

At paragraph 6.3 of her report, M s Harper draws upon the World Directory of Minority Groups and Indigenous Peoples, in which a view was expressed that minority clans “have remained especially vulnerable, even in areas where stability has improved”. That, however, was based upon a report written in 2011 and so is simply worthless in informing a discussion of conditions in Mogadishu today.

Next, seeking to illustrate her view that minority clans continued to suffer “continued prejudice and disproportionate violence” she cites an incident of an attack upon a minority clan settlement in which people lost their lives. But as this occurred in Jowhar , 50 miles north of Mogadishu and took place in November 2013, it is impossible to see how that is relevant to an assessment of the situation of members of a minority clan living in Mogadishu, a place from which Al Shabaab have completed their withdrawal. M s Harper does recognise this difficulty but concludes:

Similarly, in t he paragraphs that followed, M s Harper speaks of the risks posed by clan militias in Mogadishu whereas the clear finding of the Tribunal in MOJ & Ors was that there were no longer any clan militias operating in the capital.

There are examples of Miss Harper simply disregarding the findings of the Tribunal as to conditions in Mogadishu and reiterating her own view, despite that having been rejected. At p ar agraph 7 of her first report M s Harper says:

M s Harper records in her report conversations with unidentified sources in Mogadishu who:

Addressing next the difficulty the appellant would experience in accessing a livelihood on return to Mogadishu , it was M s Harper’s opinion, expressed at para 10.2 of her first report, that it would be extremely difficult for him to secure accommodation, food or employment:

M s Harper simply ignores this reasoning and so we do not know on what basis she departs from it.

There are many other exam ples of such difficulties in M s Harper’s report. At paragraph 11.2 of her report she opines that from the moment the appellant arrives at Mogadishu airport he:

At para 11 of her first report M s Harper asserts that:

It is not just what is in M s Harper’s report that is remarkable but, given that she offers it as an objective view of current conditions it is remarkable for one particular omission. In August of 2015 Mogadishu hosted for the first time an International Book Fair. This was a 3-day event attended by a large number of people who travelled from many destinations to attend. The event, by all accounts, was a success and those involved were proud of what had been achieved. Yet the fact that there is no mention of this event in M s Harper’s report constitutes a strong indication tha t she has sought not to emphasise any positive aspect of life in Mogadishu today.

It is not in doubt that she was aware of the event. We know that she was because her article for the BBC has attracted indignant complaints from those involved, because of the negative view expressed of an event that other s considered to be an important success story for modern Mogadishu as it emerges from the problems of the past. The report produced by the respondent includes:

The respondent points out that this was not the only omission from her report of something that might expected to be included. Given that a key issue in this appeal was the question of whether the appellant would be able to secure employment on return to Mogadishu , it is significant that laws have recently been passed restricting reliance on foreign labour in a bid to encourage a higher level of employment of young Somalis who will often be seeking lower grade employment. Evidence of this, which has been provided by the res pondent, is not mentioned by M s Harper.

In her supplemental report, addressing questi ons posed by the respondent, M s Harper further addresses three topics: the availab i l it y of alcohol in Somalia as well as treatment for alco holism; the likely response to a theism and to those returning after having acquired a history of criminal offending. In so doing she explained that she relied mainly upon mainly unidentified but “tried and tested” sources who she has worked with in the past in her career of journalism. But, as was observed by Mr Jarvis, the assessment of the reliability of a source is a task for the Tribunal and not for a witness offering evidence to it and, if the sources are not revealed, and not even the notes kept of any conversations with those sources are produced, it is hard to see that very much weight can be afforded to views founded upon information provided by such sources.

An example of this is to be found in what M s Harper says about the absence of treatment for alcoholics. Although on this occasion the source is identified, a named doctor working at a Mogadishu hospital, as we do not know the questions asked of that person, nor the answers actually provided, it is impossible to understand what is meant by the reported response that this particular hospital does not offer “specialised” treatment for alcoholics. We simply do not know whether that means that no treatment at all is available or that there is no specific clinic for alcohol related conditions.

In this section of her supplementary report M s Harper cites a comment made to her by another unidentified journalist in Mogadishu that “if you are drunk and you walk in the streets, children will come out and stone you to death” . Ye t she points to not one single example of this ever having happened. In fact, her evidence that alcohol, although illegal, is available if one knows where to look and that young people are sometimes arrested by police for being drunk on the streets on Friday and Saturday nights when returning from parties and that there are areas of Mogadishu where it is known that alcoholics congregate to drink suggests that in fact people do not get stoned to death on the streets.

Dealing next with a question about the appellant’s prospects of employment in Mogadishu , M s Harper says:

Addressing next the risks faced by the appellant as an atheist, she quoted unnamed journalists as saying that th is would amount to “a death penalty”. She provides one example of Al Shabaab having executed a man “for allegedly insulting the prophet”. But, although this took place in April 2015, Miss Harper does not say that this was an incident that occurred not in Mogadishu but in Jamame in the Lower Juba region which is some distance away from Mogadishu and an area in which, unlike in the capital, Al Shabaab maintain a physical presence. Therefore, it is impossible to see how this can, properly, be relied upon as evidence of what might occur in Mogadishu .

As for the risk from the general co mmunity, M s Harper says that if the appellant refused to pray or to go to the mosque:

For all of these reasons, I conclude that I am able to attach little weight to M s Harper’s report as the evidence of an expert witness. Her report lacks the objectivity demanded and her review of the country information available is selective. W here she expresses opinions that conflict with current country guidance, she offers no basis upon which her own opinions should properly be accepted to prevail. Therefore, this evidence stands as the view of an experienced journalist with personal experience of the city from her regular visits. It is not to be disregarded, but considered in the round with all of the other evidence available and in the light of current country guidance.

In reaching a conclusion upon the question of whether the appellant will find himself upon return to Mogadishu in circumstances such as to fall below the threshold of Article 3 of the ECHR it is helpful to address the questions posed by the applicable country guidance, so far as they are relevant in this case . It is accepted that the appellant faces the prospect of being returned after an absence of 17 years; that he has no nuclear family or other close relatives in the city and that he is a member of a minority clan. Therefore an enquiry is required of all of the circumstances, including:

h is circumstances in Mogadishu before departure;

t he length of absence from Mogadishu ;

t he clan associations he may be able to call upon in Mogadishu ;

access to financial resources;

the prospects of him securing a livelihood, whether that be employment or self employment;

t he availability of remittances from abroad;

h is means of support during the time spent in the United Kingdom ;

w hy his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.

The circumstances of this appellant before he left Mogadishu have some significance for several reasons. First, his father was able to run his business in Mogadishu and accumulate the capital that enabled him to acquire a valuable house with six bedrooms because the family had the patronage of a member of the dominant majority clan in the area who was sufficiently powerful and influential not just to secure all of that, until the civil war required them to leave, but also to facilitate the family’s return to Mogadishu in 1996, a time when generally, members of minority clans were at grave risk in Mogadishu generally and in particular when encountering majority clan militias at check points. The appellant has explained that because this man “was waiting for us” they were able to pass through the Mogadishu checkpoints without difficulty.

Next, having returned to Mogadishu in 1998 under the protection of this man, as their house was occupied by other majority can members, they were invited to stay at the home of their “patron” for several months. This is indicative of the level of support available and no explanation has been offered as to why this man would decline a request from the appellant for help on return, subject to what I say below about atheism and criminality.

Also, in this regard, it is notable that the country evidence relating to that time indicated that the homes of minority clan members were indeed simply taken by members of majority clans. That the family’s “patron” should not just assist by ejecting the occupants from the house but by paying, in 1996, $40,000 for the house rather than simply taking it for himself, indicates the security of the family’s position under this patronage.

The appellant’s parents both chose to remain in Mogadishu after the appellant and his brother decided to move to Europe . This was despite the fact that their sons were able to make a comfortable journey to their European destinations by each paying agents $5,000. The parents retained the balance of the proceeds of the sale of the house and I do not accept that $30,000 would not have been sufficient to fund their own departure from Mogadishu should the conditions in which they were living have been unsatisfactory.

Similarly, we know that the appellant’s mother died in 2013 and had remained in the same accommodation that the family had occupied since th eir house was sold in 1996. N othing is offered to show that the appellant’s mother suffered any real difficulty during this period . That demonstrates, as the appellant says that his mother was living in an IDP cam p or in a r efugee camp, that accommodation described as thus does not necessarily m e an that it s occupants suffer Article 3 level harm.

For these reasons , I am entirely satisfied that the appellant’s circumstances in Mogadishu before his departure were not difficult such as to require him to leave to seek international protection. Rather, he and his brother left to seek to establish themselves in Europe to lead a different sort of life than did their parents.

The appellant now has no family remaining in Mogadishu to look to for assistance in re-establishing himself. He is a member of a minority clan and it is submitted on the appellant’s behalf, based upon what was said in MOJ & Ors concerning the ability of a minority clan to provide assistance, that he will not be able to look to his clan either for support. On the other hand, Mr Jarvis submits that the appellant’s clan is such that the appellant would have resort to:

This evidence indicates that, even if some minority clans have little to offer to those of its members looking for assistance , the Benadari , of which the appellant’s clan is a sub-clan, is not in such a position . On the contrary, the economic enterprise of this clan is such that it has created business es that will inevitably generate employment opportunities and it is not easy to see why this would not be to the appellant’s advantage.

As for access to financial resources, there is no evidence to suggest that the appellant presently has access to any such. We simply do not know if there remains available any part of the proceeds of the sale of the family home, as we have no information as to whether the appellant’s mother had expended that $30,000 in maintaining herself, even if it appears from what we have been told that her outgoings would not have been great. But it would be speculative to assume that the appellant would have access to any such funds upon return and so I proceed on the basis that he would not.

He would, though, be entitled to claim £750 under the respondent’s Facilitated Return Scheme, should he chose to apply for it. As for remittances, it appears that the only possible source would be his brother in Birmingham but the appellant says that this brother has cut him off because of his atheism and that, in any event, that brother has himself limited resources. The appellant said in oral evidence that he has continued to m aintain contact with his sister-in- law who has begun to understand his position. It seems to me that there must be a real possibility, should the urgent need arise, that this brother would reconsid er his position and act as do most of the Somali diaspora and provide what help they can to relatives in Somalia. However, once again, I accept that the evidence indicates that the appellant cannot, at least for the time being, rely upon that source of support.

Before addressing the key question in this appeal, which is the prospects of the appellant securing a livelihood in Mogadishu by finding work, it is necessary to look at what has occurred while the appellant has been in the United Kingdom . Mr Gilbert submits that for much of the time the appellant has been in the United Kingdom he has been unemployed and homeless. Whilst it is true to say that there have been substantial periods during which the appellant has been without work or accommodation, that has been after his appeal rights have been exhausted and he had no lawful basis upon which to be in employment and was not in receipt of other financial support . Conve rsely, when he has been entitled to work he has found employment. He has worked at a BMW factory on Oxford for a seven month period and in a car tyre warehouse for 18 months. In addition, while serving his prison sentence the appellant has made good use of his time. In the appellant’s bundle are copies of a number of certificates:

City & Guilds Level 2 Diploma in Wall and Floor Tiling;

City & Guilds Level 1 Award in Basic Construction Skills: Paint finishing skills and surface preparation skills;

City & Guilds Level 1 award in Basic Construction Skills;

Cleaning Professionals Skills Suite certificate awarded by the British Institute of Cleaning Science ( BICSc );

Licence to Practice, issued by BICSc

OCR Functional` Skills in Mathematics at Entry 3;

OCR Functional Skills in English at Level 3

OCR Level 1 “International Diploma for IT Users”;

OCR Level 1 Award in IT User Skills;

NCFE Level 1 Award in Mentoring’

All of this indicates that the appellant would be a person who, in seeking low skilled work in Mogadishu would have advantages over those without anything to show a prospective employer, particularly given his construction qualifications. The reasons offered as to why the appellant would have no prospect of securing work on return do not stand up to scrutiny .

There is no evidence that the appellant would be at risk on account of his asserted atheism. Despite an invitation to do so , Mr Gilbert has been unable to refer me to any evidence of compulsory or even encouraged attendance at mosque or even of disapproval of those who do not. Put shortly, it is hard to see why anyone would know, unless the appellant volunteered that information, which there is no reason for him to do.

Nor has it been established that there is any real risk of difficulty being experienced by the appellant on account of his conviction, in 2010, for offences of sexual assault. Leaving aside the fact that there is scant evidence of anyone ever having been subjected to persecutory ill-treatment on return to Somalia on that account, it is notable that the appellant faces deportation for an offence disclosing no such characteristics as might offend social mores . It is notable also that there is no mention at all in the judge’s sentencing remarks of the now 5 year old conviction for sexual assault and it has not been suggested that there were any press reports of that conviction. Therefore, it is not altogether easy to see how or why that information would now become known upon return to Somalia .

M s Harper did cite one example of a man who was said to have been killed on return after having been deported on account of having committed a sexual offence. She said that a colleague in Mogadishu had told her that a “convicted paedophile deported from the US ” had been murdered soon after he arrived in Mogadishu . But, as Mr Jarvis pointed out, we do not know when this is said to have occurred, the circumstances in which this happened, who was thought responsible or even the motive for the attack, although the context in which it is cited invited the inference that this was to do with the nature of the offence committed. Also, there is no news or other report of such an incident. For all these reasons, this evidence falls very significantly short of establishing that which is asserted.

As for the appellant’s previous difficulties with alcohol, the risk alleged now in that regard is simply illusory. The appe llant has completed an Alcohol A wareness course and has confirmed, specifically, that he will not drink alcohol in future. He has not consumed any alcohol for the last four years, while in prison, and that period of abstinence, reinforced by his completion of the A lcohol A wareness course and stated resolve to abstain in future, taken together with the fact that in Somalia use of alcohol is illegal and it is no t easy to obtain, means that there is no real risk that this will become an issue in the future.

Drawing all of this together, I reach the following conclusions. The appellant does not face a real risk of being subjected to ill- treatment sufficiently serious to infringe Article 3 of the ECHR on account of any of the reasons asserted. In particular:

There is no reason to suppose that the appellant’s atheism would become known and, in any event, the evidence does not establish any real risk of persons in Mogadishu being subjected to ill-treatment on that account;

While it may become known that the appellant has been removed to Mogadishu on account of a deportation order following conviction for a serous criminal offence, the evidence does not establish any real risk to returnees on such account. There is no reason why an earlier conviction for sexual assault would become known and the appellant has identified no reason to suppose anyone who would be able to do so would now wish to make that known and, in any event, the evidence simply does not establish that persons convicted of offences that might be thought to offend social mores do in fact face a real risk of Article 3 ill-treatment, even if that matter may have been left open by the Tribunal in MOJ and Ors ;

There is no reason to suppose that the appellant would resort to alcohol upon return. In any event, the evidence does not support the asserted risk of ill-treatment to those in Somalia who do consume alcohol, even to excess;

The asserted fear of a revenge attack by family members of the victim of the assault carried out by this appellant for which he was sentenced to 6 years imprisonment is entirely speculative. I have been referred to no evidence of such revenge attacks in fact being carried out in the past in Mogadishu . There is no evidence of any threats have been made to or received by the appellant .

The appellant is equipped with skills and qualifications that will assist him in seeking work upon return to Mogadishu , particularly in the construction industry. As was made plain in MOJ & Ors , while it may assist a person seeing to find work to have the sponsorship of an established family network of majority clan, absence of that support was not a disqualification to access to work. This appellant has relevant skills and work experience in the United Kingdom and he has not shown that he has no prospect of securing a livelihood. Further, as I have said above, there is evidence of a vibrant Benadiri business community to which the appellant can also look in his search for a livelihood.

The appellant has no family accommodation in Mogadishu to return to but, as is evidenced by the experience of his own parents, resort to less formal accommodation does not necessarily mean living in conditions that fall below the Article 3 threshold. This appellant can apply for a resettlement grant and is well placed to secure work in the vibrant construction industry in Mogadishu today.

For the reasons given in the error of law decision annexed to this decision, the First-tier Tribunal made an error of law and its decision has been set aside.

I substitute a fresh decision to dismiss the appeal.

I make an order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 that nothing is to be published that might lead to the identification of the appellant or any member of his family.