COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE HOOPER
THE RIGHT HONOURABLE LORD JUSTICE HUGHES
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|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Frances Webber and Femi Omere for the Appellant DM
Becket Bedford for the appellant AA
Robert Jay QC and Kristina Stern (instructed by Treasury Solicitor) for the Respondent
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LORD JUSTICE HOOPER :
"We find that the appellant has failed to establish that he, on return to Somalia, is at real risk of any breach of his Article 3 rights. Though we find an error of law [in the determination of the Adjudicator], we substitute our own decision to dismiss this appeal on human rights grounds."
"Since he, in collusion with three witnesses, manufactured a false case and gave misleading evidence as to his true clan membership. It follows that the Adjudicator was unable to find which majority clan he belonged to or his normal home area". (Underlining added)
"Decision to remove an illegal entrant/other immigration offender or a family member of such a person – asylum/human rights claim refused."
"You have made an asylum/human rights claim. The Secretary of State has decided to refuse your claim for asylum and/or human rights for the reason stated on the attached notice."
"Directions will be given for your removal from the United Kingdom to Somalia."
"The respondent has not, of course, disputed that he is a Somali national or indeed, as far as I can see, that he comes from Mogadishu."
"122. A majority clan can be characterised as one which has its own militia. The strongly clan and family based nature of Somali society makes it reasonably likely, though not certain, that a militia escort could sufficiently protect a returnee from Mogadishu through the road blocks and en route banditry, to the clan home area. This would have to be pre-arranged. Any unwillingness on the part of a claimant to make such arrangements is irrelevant. The telephone connections to Mogadishu are good. We do not know anything of their availability to other towns. The mere unannounced deposit, even of a majority clan member, and especially a female, at Mogadishu airport would be likely to put them at a real risk, in the absence of special factors.
123. There are problems with those whose case has been so disbelieved that it is not known what their clan or place of origin is. It is difficult to see that such a person could succeed; he or she would be a majority clan member who was in effect declining to demonstrate, even to the low standard of proof that they were at risk on return because unable to arrange for clan militia escorts from Mogadishu or wherever else they might be returned to."
"13. Referring again to paragraph 122 of the decision in NM Mr Toal has argued both in his written skeleton and in his oral submissions that the phrase "reasonably likely" that a returnee could arrange militia to escort him home is significant. He relied on the decision in Demirkaya and argued that if it is only "reasonably likely" that protection could be arranged it nevertheless left a significant reason to believe that such protection could not be arranged, and therefore that a returnee would be exposed to a real risk of serious harm and ill-treatment. We think this misses a point about the remarks of the Tribunal at paragraph 122. The Tribunal was not adjudicating on the specific facts of a particular case; it was giving guidance on the country evidence and reports, and indicating what the general situation is. We do not accept therefore that we should make a finding that the term the Tribunal used in NM is applicable to the circumstances of this appellant, and that he is "reasonably likely" to obtain protection but thus be left at significant risk of harm. We think, as we say, that he falls within the category of case described by the Tribunal at paragraph 123. We repeat that this is an appellant who has fabricated a claim. He has withheld the truth about his origins, about his clan membership, about his normal home location and has not addressed at all the issue of the availability of protection at the airport in Mogadishu if returned. He has therefore failed to show that he is at risk because, as the Tribunal put it, he is unable to arrange for clan militia escorts from Mogadishu or wherever else he might be returned to.
14. We do not therefore think that the appellant has made out his case that there is a real risk that on return to Mogadishu he will be subjected to torture or inhuman or degrading treatment in breach of his Article 3 rights.
15. We have been asked by Mr Toal, having identified an error of law, to adjourn the case for further evidence on two matters. Firstly the appellant's true clan membership and secondly evidence as to the precise point of return, given the vague intentions in the removal directions. We do not think it would be appropriate to adjourn for those reasons. The Secretary of State will clearly have to give precise directions before removal can be effected at which time the appellant will be able as a member of a majority clan to make arrangements for the necessary protection. Secondly, we do not consider that the appellant having given wholly unreliable evidence about his clan membership at his asylum and human rights hearing, should have the opportunity to put an entirely different case based on a different clan membership. He had the opportunity when he appeared before the Adjudicator to provide evidence as to the risk to him in his own particular circumstances and he chose not to do that but to advance instead an untruthful claim."
"The Secretary of State will clearly have to give precise directions before removal can be effected at which time the appellant will be able as a member of a majority clan to make arrangements for the necessary protection."
Ms Webber does not submit that the refusal to adjourn constitutes an error of law.
"We would expect the Secretary of State to provide information as to the various places of return, if other than Mogadishu."
"It is difficult to see that [a person whose claim to be a member of a minority clan has been disbelieved] could succeed; he or she would be a majority clan member who was in effect declining to demonstrate, even to the low standard of proof that they were at risk on return because unable to arrange for clan militia escorts from Mogadishu or wherever else they might be returned to."
He has therefore failed to show that he is at risk because, as the Tribunal put it, he is unable to arrange for clan militia escorts from Mogadishu or wherever else he might be returned to.
"The strongly clan and family based nature of Somali society makes it reasonably likely, though not certain, that a militia escort could sufficiently protect a returnee from Mogadishu through the road blocks and en route banditry, to the clan home areas"
"34 (3) ... the IAT was not purporting to make a determination of the presence or absence of a real risk in individual cases. Rather, the IAT indicated some circumstances where a real risk would exist, but otherwise, made only general observations as to the likely circumstances on return. The IAT were merely providing some guidance drawn from the evidence that they had heard to assist future decision-makers who had to make decisions on individual cases;
34 (4) that is consistent with the IAT's findings in NM on the individual cases: the IAT upheld the Adjudicator's finding that the return of a young single woman to Somalia did not give rise to a real risk of article 3 ill-treatment in the case of SS (at paragraph 28), but also in relation to the case of LA found, at paragraphs 45  and 51 , that the background material permitted but did not require a conclusion that an individual faced a real risk of article 3 ill-treatment in travelling from the point of return to the clan area;".
"If you appeal you do not have to leave the United Kingdom whilst the appeal is in progress. However, if the appeal is unsuccessful you will be removed."
"I have given/proposed to give directions for your removal to Somalia by flight/ship/train".
"She has not satisfied me that she is from a minority clan. When I consider all aspects of [her] case in the round, I do not find that this appellant is credible."
"Accordingly the appellant has not satisfied me to the requisite degree that she has a well founded fear of persecution for a Convention reason on return to Somalia".
"One source has said that banditry is the main problem, and the main forms of conflict take the form of localised violence. Individual instances of clan based violence are not large scale, but there are a considerable number of victims of low-level incidents of conflict. People have become adept at avoiding dangerous situations. Militia target members of an opposing clan. There have been numerous violations of the human rights of women and children. Protection is given by members of one's own clan."
"The evidence disclosed in the objective material does not indicate that there is a reasonable likelihood of it attaining that minimal level of severity that is required before Article 3 rights are engaged."
"In so far as the grounds contend that the [Adjudicator] was not entitled to consider that the [claimant] would not be at risk on return simply by virtue of being a female returnee (from a majority clan), firstly the [Adjudicator] in this case found that the [claimant] would be able to look to family members in Somalia for support and would be returning to a town where she would not be alone and vulnerable and secondly, the tribunal in Country Guideline cases, has not accepted that women returnees constitute a risk category per se. The grounds of appeal did not refer to any background material and have not been considered by the tribunal."
"However permission is granted limited to grounds 2.1 - 3.1 namely those grounds which address what may be called the 'quality of protection' issue or more specifically, the issue of whether majority clan protection in the context of present day Somalia is capable of affording protection within the meaning of the refugee convention and the ECHR."
"had not met the 'serious harm' test i.e. she had not established that on return she faces a real risk of serious harm or treatment contrary to Article 3."
"The Tribunal remains of the view that protection under the Refugee and Human Rights Conventions can be afforded by de facto or quasi-state entities".
"The Adjudicator and the Tribunal erred in law in failing to address the appellant's claim to be at differential risk in Mogadishu as a woman, in the light of the evidence of an intensified pattern of human rights abuses targeted specifically against women. The Tribunal erred, in so far as it refused permission, to argue the point on the basis that this risk to women in Mogadishu has been the subject of recent country guidance, which it had not."
"The Adjudicator and the Tribunal erred in law in failing adequately to assess the issue of risk to Somali women returning to Mogadishu, and in particular, failing to recognise or address the evidence of specific risk to returnees to Somalia and the even greater risk for women returnees from marauding militia on account of (inter alia) their perceived wealth."
"...if when the Tribunal reads the Special Adjudicator's decision there is an obvious point of Convention law favourable to the asylum seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued."
"The matter may ... be tested in this way. Had the AIT considered the NM issues, where would it have left Ms DM? Her case is very similar to Mr AG's, indeed the only differentiating feature was gender but the IAT held in NM that female gender raised issues of degree not of kind. Accordingly this may hardly be characterised as an obvious point of Convention law which cried out to be considered.
"I therefore dismiss this appeal on both asylum and human rights grounds".
"The Appellant claims to be a member of the minority clan Banadira, sub-clan Bandhabow, and to have suffered persecution as a consequence in Somalia and if returned there that persecution would be repeated. The issues in this appeal hearing were the credibility of the Appellant and whether or not he was Banadiri. Mr Proctor [Home Office Presenting Officer] conceded at the outset of the hearing, if the appellant was Banadiri then he would be likely to encounter ill-treatment amounting to persecution if returned to Somalia."
"I find, had there been any other scars or marks on the appellant's chest or head as a consequence of being hit by grenade fragments, the doctor would have reported them."
"I find the appellant's account and his claim that he never knew, nor did his step brother, the telephone number of the paternal uncle in the USA to be incredible and strongly indicative of the appellant's attempts to obscure the truth of how he left Somalia."
"I do not find it plausible that, had someone come from the appellant's uncle in the USA under instruction to search for and make contact with the uncle's family [in] Somalia, that he would not have given the uncle's contact number in the USA. If the uncle was anxious for the safety of his family and hoping to make contact he would obviously have provided the messenger with his telephone number."
"I find the appellant's evasive attempts to deny any knowledge of his uncle's telephone number or address in the USA to be, in fact, an attempt to prevent any revelation that his account is total fabrication, because, of course he would otherwise have to explain the absence of any corroborative evidence by letter or other means from his paternal uncle." (Underlining added)
"The appellant further attempted to embellish his account of being unable to contact his uncle by claiming that the telephone number of the neighbour, whom the uncle phoned, and through whom the appellant could have contacted his step-brother in Mogadishu, was written on a piece of paper which the agent took from him when he required the appellant to remove all of his clothing. The telephone number was on a piece of paper in the appellant's shirt pocket. I find the appellant is not telling the truth about the arrangement for his departure from Somalia which is again, destructive of his credibility."
"Further, during cross-examination when asked how the USC militia of the Abgall clan were distinguishable from the appellant's Bandhabow clan, the appellant claimed that the Abgall clan were dark skinned and he was light skinned. Firstly, his appearance belies that claim and he further contradicts the objective evidence in the Danish Fact Finding Report which clearly states that 'the Reer Hamar groups, the Bandhabow and Morshe, are considered dark skinned while the other sub-category are considered light skinned.' The appellant claims to be Bandhabow and therefore dark skinned which is indeed his appearance, and therefore makes a nonsense of his claim in his oral testimony how the USC militia of the Abgall clan, or indeed of the Habar clan by whom the appellant was also attacked and whom he claims shares the same physical characteristics of the Abgall claim, were able to distinguish the appellant."
"I find that although the appellant has prepared himself by research in order to corroborate his false claim to be Banadiri, the above discrepancies undermine his claim."
"I am not persuaded that there has not been collusion and careful preparation of consistent accounts".
"The Immigration Judge misdirected himself in law/or he was wrong in principle and/or he erred in his approach in paragraph 37 to the corroborative evidence of the appellant's witness and that he had dismissed her evidence because he had earlier dismissed the evidence of the appellant and as a result the Immigration Judge failed to base his credibility findings in relation to the appellant on the whole, as opposed to merely a part of the evidence and further he required the appellant's evidence to stand by itself before giving any credence to the corroborative evidence which undermines the point of corroboration."
"The Immigration Judge failed to direct himself in accordance with AJH (Somalia)  UK IAT 00094 in which it was held at paragraph 43 that where the issue is membership of a persecuted minority clan the credibility of the appellant's account of past persecution is not decisive."
"Whether the account he gave of his past experiences at the hands of a neighbouring tribe was accepted or not, his clan identity would put him at risk."
"whether as a returnee, the applicant had a well founded fear of being persecuted for reasons of membership of a particular social group namely that of Somali returnees".
"A letter from the Home Office dated 19 April 2005 set out the position as it was at the time we heard the appellant's appeal. The relevant paragraph reads:
'We reached agreement on enforced returns with the outgoing Iraqi Interim Government just before the elections in Iraq held on 30 January 2005. However, the new administration has not yet been appointed, although we expect this process to be completed soon. Once ministers are in post we will be confirming our operational plans with them. We cannot at this stage be firm on when enforced returns might start, nor is it possible to disclose the likely mechanics of the returns operation, as no final arrangements have been made pending the operational decision being taken to proceed.'"
"... the appellant faces an insuperable difficulty in the present case because no removal directions have been set. Thus no one has, at present, any idea how it is intended he should return to his home area in Iraq. The position at the date on which we heard this appeal remained entirely in the air. There was no general or standing arrangement for enforced returns to Iraq; nor was there any specific arrangement for this appellant. Even if there is jurisdiction, there is nothing against which to appeal."
"46. In my view the appellate tribunal's jurisdiction attaches to an immigration decision as defined in section 82(2) of the 2002 Act. In order to found an appeal an appellant would have to challenge one or more of the decisions specified in subsection (a) to (k). If the Secretary of State chose to give removal directions at the same time as and linked to, for example his refusal of leave to enter the United Kingdom (which is not, as I understand it his ordinary practice at the present time) then it seems to me that commonsense dictates that both should be considered at the one appeal. That would be entirely in keeping with the policy of the legislation. It also accords with the approach of the Court in Kariharan. Furthermore, I regard the wording of section 84(1)(g) as wide enough to permit this.
47. What I do not think the present legislation permits is an appeal against entirely freestanding removal directions as would be the case when they are made separately on a later occasion. In such circumstances the remedy for unlawful directions would be a judicial review. It is, however, unnecessary for present purposes to decide the extent of the appellate tribunal's jurisdiction in circumstances where removal directions are given at one and the same time as an appealable immigration decision or where there is an established route of return which it is known will be used.
48. The present appeal in my judgment fails because no removal directions have been set. The question whether, when they are, there could be a breach of the United Kingdom's international obligations is wholly academic. What directions the Secretary of State eventually decides to give, if any, are a matter for him. If when he gives directions it is contended they are unlawful because they breach the United Kingdom's international obligations the remedy would be judicial review. There is no right of appeal under the 2002 Act."
"50. I agree. In particular, I agree that what is of fundamental importance in this case is that no removal directions have yet been given. That means that the method of return to the appellant's home area and the route which would be taken in pursuance of such directions are wholly unknown. In such circumstances the appellant is in no position to establish either a well-founded fear of persecution or a risk amounting to a breach of Article 2 or Article 3 of the Human Rights Convention, arising solely as a consequence of the method or route of return to his home area.
51. It may be that there will exist cases where the appellant may be able to make good this deficiency, even in the absence of removal directions, because the Secretary of State has committed himself through a policy statement or otherwise to a particular method and route of return. In such a case, it may be implicit in the decision to remove from the United Kingdom that a particular method and route would be adopted and, if so, the safety of that method and route may be considered by the appellate tribunal as being part and parcel of the "immigration decision" under section 82(1). It would be open to an appellant to rely on ground (g) under section 84(1), just as he could if the Secretary of State had chosen to give removal directions as part of the immigration decision. Like Scott Baker LJ, I take the view that the wording of section 84(1)(g) is wide enough to give the appellate tribunal jurisdiction to take into account the "en route" risks in such cases. But I share Scott Baker LJ's view (paragraph 47) that the legislation does not enable an appeal to be brought against later freestanding removal directions.
52. In the present case, no method or route of return had been specified as yet by the Secretary of State. The appellant was, in effect, asking the appellate tribunal to speculate about such matters and to assess the risks involved in a hypothetical situation. The tribunal was right to reject such a course of action. If, in due course, removal directions are set which allegedly give rise to a real risk to the appellant, any challenge to those directions will have to be by way of judicial review. I too would dismiss this appeal."
"If, in due course, removal directions are set which allegedly give rise to a real risk to the appellant, any challenge to those directions will have to be by way of judicial review."
"The present appeal in my judgment fails because no removal directions have been set. The question whether, when they are, there could be a breach of the United Kingdom's international obligations is wholly academic." (Emphasis added)