England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th October 2006

LORD JUSTICE HOOPER :

1. We heard together one appeal and two applications for permission to appeal. The appellants, all Somalian, have been disbelieved by immigration judges in their claims that they are members of minority clans in Somalia. Those found to be members of minority clans have a significantly better chance of their Article 3 claims succeeding than members of majority clans. Having being disbelieved, the appellants were held to be members of majority clans.
2. It is submitted that the appellants, though being members of majority clans, face a real risk of suffering inhuman or degrading treatment within the meaning of Article 3 of the European Convention of Human Rights at a Mogadishu airport following their arrival at the airport or on the way home into Mogadishu. The journey, as I understand it, should not take very long. It should certainly not take anywhere near as long as the two days over which the appeal and the applications for permission to appeal were heard.
3. This case has an air of unreality about it. The Adjudicator, the AIT and this Court are looking at the circumstances which were prevailing in Mogadishu at the time of the decision of the AIT in July of 2005. Since then there have been, according to the media, significant improvements for those who live in Mogadishu. Nonetheless we have to decide this case on the basis of the situation as found in July 2005.
4. The air of unreality about this case relates also to the issue of the airport. The only way in practice for returning a failed asylum seeker to Somalia is, so we were told, by air. The international airport at Mogadishu was not open in July 2005 and remains closed. In 2005 there were, we were told, a small number of landing strips controlled by various clans or warlords. We were told during the hearing that the last enforced departure for Somalia was in May 2004, the returnee having been taken to the international airport at Mogadishu. The idea of a plane containing a returning failed asylum seeker finding some airstrip in Mogadishu and dropping him or her off seems to me to be very far fetched.
5. We shall deal with each appellant in turn, starting with AG.

AG

6. Mr AG appeals against a decision of the Asylum and Immigration Tribunal ("AIT"). In July 2005 the AIT concluded (on a reconsideration of the determination of an Adjudicator) that the appellant had not 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". The AIT wrote:

"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."

7. The appellant had claimed that he was a member of a minority clan. The appellant was comprehensibly disbelieved by the AIT. The AIT wrote:

"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)

8. There is no challenge to the finding that the appellant had presented a false and misleading case.
9. It is not disputed by the appellant that if he returns to Mogadishu (where he says that he was living before he left Somalia) he cannot show that, after his arrival at his home (or new home), there is a real risk of suffering inhuman or degrading treatment within the meaning of Article 3 of the European Convention of Human Rights. His claim is, and only is, that there is a real risk that he will suffer that treatment upon arrival at an airport in Mogadishu or upon his journey from that airport to his home.
10. The document which gave the appellant the right to appeal to an Adjudicator is a letter dated 22 January 2004 headed "Notice of Decision". It is headed:

"Decision to remove an illegal entrant/other immigration offender or a family member of such a person – asylum/human rights claim refused."

11. The letter states that a decision has been taken to remove the appellant from the United Kingdom and continues:

"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."

12. The letter then states under the heading "Removal Directions":

"Directions will be given for your removal from the United Kingdom to Somalia."

13. No such removal directions have so far been given and it is accepted that such a direction must be given before the appellant's return to Somalia could be effected. It is also accepted that such a removal direction may, as a matter of law, be open to challenge before a court or tribunal.
14. Both the Human Rights challenge and the Refugee Convention challenge stemmed from the same letter.
15. In cases involving Somalia it would be unrealistic for the Secretary of State to make a firm plan for the appellant's removal to Somalia as long ago as 22 January 2004. A week is not only a long time in politics but is also a long time in the life of a country as sad and war torn as Somalia. It follows, so it seems to me, that a tribunal or court asked to resolve issues under the Refugee Convention or under the Human Rights Convention will have to approach the matter on the basis that precise directions will only be given after the appellate routes have been exhausted.
16. Miss Webber's first challenge is to the underlined words "or his normal home area" in the passage cited in paragraph 7 above.
17. She submits that there was no issue that the appellant had lived in Mogadishu and that, if he were to be returned, it would be to Mogadishu he would go. Her forensic reason for showing that the appellant came from Mogadishu was that Mogadishu, so she submits, was in 2005 a more dangerous place than other parts of Somalia (a proposition which I personally but instinctively found surprising).
18. She points to paragraph 9.3(1) of the Adjudicator's Determination and Reasons in which he states:

"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."

19. Mr Jay QC sought in his skeleton argument to uphold what was said by the AIT about the appellant's "normal home area". Mr Jay submitted that since the appellant had been disbelieved it was not possible to decide where his home is. Mr Jay may logically be right on the facts of this case and there is support for his argument in paragraph 26 of the decision of the Immigration Appeal Tribunal ("IAT") dated 14 February 1995 in the Country Guidance case NM and Others [2005] UKIAT 00076. (As to the status of a Country Guidance decision see e.g. R (Iran) and others v. SSHD [2005] EWCA Civ 982; [2005] Imm AR 535.) On the other hand it is possible to envisage a case where the appellant is disbelieved about his clan status but nonetheless a conclusion can be reached about his home.
20. In my view we do not need to resolve this issue. There is no suggestion that the appellant would be returned to anywhere other than Mogadishu and Ms Webber tells us that if he is to return then he will go and live in Mogadishu. I shall proceed on that assumption.
21. Both Ms Webber and Mr Jay agree that central to the issues which we have had to resolve are paragraphs 122 – 123 of NM. Those paragraphs read as follows:

"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."

22. Ms Webber relied on paragraph 122 but criticised paragraph 123. Mr Jay supported both paragraphs (but see further paragraph 120 of this judgment).
23. The AIT in the instant case had this to say in its conclusions:

"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."

24. I turn to the various submissions made by Ms Webber.
25. Ms Webber submitted that absent any evidence as to the precise point of return, it would be impossible to know whether the appellant was at real risk of Article 3 ill-treatment. If he were to be landed at a landing strip controlled by an unscrupulous warlord or clan, then he could be at risk (see paragraph 77 of NM and paragraph 7 of the AIT's decision in the appellant's case). Indeed, counsel for AG in the AIT asked for an adjournment so that evidence could be led by the respondent as to the precise point of return. Ms Webber also submits that absent an undertaking from the respondent that he will give adequate time for the making of the telephonic arrangements for protection, the AIT could not exclude the risk that the appellant would not have time to set in motion the necessary arrangements for protection. He would then be subject to the risks of an "unannounced deposit". Such an unannounced deposit would, in the words of the AIT, be likely to put [the returnee] at a real risk, in the absence of special factors".
26. The AIT refused an adjournment on this ground saying, in its 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."

Ms Webber does not submit that the refusal to adjourn constitutes an error of law.

27. In NM the IAT had said in paragraph 36:

"We would expect the Secretary of State to provide information as to the various places of return, if other than Mogadishu."

28. Mr Jay did not offer an undertaking but accepted that the respondent would be bound to take into account the requirement to give precise directions and the necessary information as to the proposed airport or landing strip, whether in Mogadishu or outside.
29. He submitted that the AIT in AG was not obliged to consider the question of travel from an airport to a clan home area - any determination of such an issue "would be nothing more than guesswork" (Skeleton Argument, 6/06/2006, paragraph 28). I disagree with the proposition that the AIT is never obliged to consider whether there is a real risk of persecution or Article 3 ill-treatment at the airport or on the way home. As to "guess work", the AIT cannot just throw up its hands and not deal with relevant issues.
30. I had thought at first that the respondent should be invited to give the necessary undertakings and that, in the absence of any undertakings, the appeal might well have to be allowed. I have concluded that undertakings are not necessary. If and when the respondent makes a removal direction for the appellant, the respondent must take into account, if the circumstances in Mogadishu have not changed much to the better, that an unannounced deposit would put the appellant at real risk, absent special factors. The respondent must also take into account that the appellant must be given an opportunity to make arrangements for protection at the airport and on his way home. That means that the appellant must be told, in advance of his removal, at which airport or landing strip it is intended to leave him. Ms Webber rightly reminded us of the strong judicial criticisms of a practice of giving insufficient notice to proposed returnees: see eg. R (on the application of Karas and another) v. SSHD [2006] EWHC 747 (Admin). I endorse those criticisms.
31. Why then do I take the view that undertakings are not necessary? It seems to me that given the volatility of the situation in Somalia, it would be wrong to require undertakings which might be inappropriate in a changed situation. The downside is that, in the absence of undertakings, there is a risk of further litigation at the point of removal. However the length of time between a decision to remove and a decision to effect removal in Somalia cases coupled with the volatility of the situation in Somalia means that it may be difficult to shut out any chance of further litigation at some uncertain point in what may be a long time in the future.
32. I have reached the conclusion that it is impossible for Immigration judges in cases of this kind (involving the safety of arrival at an airport and of a journey into Mogadishu) to deal with all the eventualities at the time of the hearing. The judge may have to make it clear what has to be done by the respondent so that an enforced returnee to Somalia does not face a real risk of Article 3 ill-treatment at the point of his return. The judge is then entitled to assume, for the purposes of the hearing before him or her, that what is required will be done.
33. I return to this issue at the conclusion of my judgment.
34. Ms Webber submitted that the AIT had wrongly decided the case solely on the burden of proof, when the Appellant could not discharge that burden since he did not know when or to where he was to be returned. The appellant has shown, relying on NM, that there can be real risks associated with the return to the airstrip or airport and from there to home of a failed asylum seeker even from a majority clan. However, as I have said, it is for the Immigration judge to indicate what will need to be done to obviate the travel risks.
35. The IAT in NM envisaged that money might have to be paid for the necessary protection (paragraphs 88 and 98). That gave Ms Webber a further ground of appeal. She argued that payment to a militia would be a breach of the UN arms Embargo and of the Order in Council implementing the Embargo. Even the Prevention of Terrorism (Temporary Provisions) Act 1989 was prayed in aid. This argument led Mr Jay to analyse the legislation and to submit that there would be no breach: it would not amount to "financial ... assistance" "related to military activities" (the words used in Article 5 of the Somalia (UN Sanctions) Order 2002 (SI 2002/No 2628)). In my view this ground is unsustainable but for another reason. Until such time as arrangements are made for the return of the appellant, it cannot be known whether there is even the possibility of a breach. In any event under Article 5 the Secretary of State may grant a licence for what might otherwise be a breach of the Order.
36. Ms Webber attacks the following passage in paragraph 123 of NM:

"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."

37. The AIT adopted the sentence into its determination when it wrote:

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.

38. I confess to some difficulties with this passage in NM. Mr Jay submitted that the appellant's untruthfulness about his clan identity meant that he could not demonstrate a risk on return due to an inability to arrange clan militia escorts. That, so Mr Jay submits, would be "entirely an exercise in speculation". I do not agree. A person whose claim to be a member of a minority clan has been disbelieved is, it seems to me, "unable to arrange for clan militia escorts" until he knows where and when he is to be returned.
39. That said, it does not seem to me that the fact that the AIT placed reliance on paragraph 123 provides a ground of appeal. The appellant has failed to establish a sufficient risk of ill-treatment to put this country in breach of its obligations under Article 3 because it is to be assumed that he will be given at the time of any proposed return sufficient notice to obviate the risk.
40. Mr Bedford (in an argument which Ms Webber made it clear she supported) submitted that no return to Somalia could be safe because of the following passage in paragraph 122 of NM:

"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"

41. The AIT responded to that argument in the first part of paragraph 13 (paragraph 23 above).
42. Mr Jay submitted in his skeleton argument:

"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 [190] and 51 [192], 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;".

43. I agree with Mr Jay - if Mr Bedford were right in his interpretation of this passage then no one could ever be returned to Somalia in the conditions found to exist in July 2005. The AIT in NM was not so finding.
44. Ms Webber additionally took us into further background material about Somalia. It is to NM, in the absence of any changed circumstances (and none were alleged before the AIT), that we must turn for guidance about the conditions in Somalia at the relevant time. She gave a long list of possibilities (including the "degree of intoxication by qat or other drugs" on the part of militia members who might become involved with the returning asylum seeker and the problems of intra clan disputes). It is not for this court to weigh up these possibilities in the light of the decision in NM: see S and others v SSHD [2002] EWCA Civ 539 per Laws LJ.
45. For all these reasons I would dismiss the appeal. I am conscious that I have not dealt with Ms Webber's submissions at a great length but I take the view that she has perhaps over complicated what are the comparatively simple issues in this case.

DM

46. During the course of the hearing of the appeal we announced our decision that the appellant's application for permission to appeal had failed.
47. She was born on 1st January 1984 and is a national of Somalia. She entered this country on 2nd August 2003. Her documents were discovered to be false and she then claimed asylum. The Secretary of State sent her a letter dated 2nd October 2003 telling her that he had refused her application for asylum. She was told that:

"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."

48. Under the heading "Removal Directions" the Secretary of State wrote:

"I have given/proposed to give directions for your removal to Somalia by flight/ship/train".

49. On 27th January 2005 her appeals to the Adjudicator under both the Refugee Convention and the Human Rights Convention were dismissed.
50. The appellant claimed to be a member of a minority clan and she was disbelieved by the Adjudicator. Having considered the evidence the Adjudicator concluded:

"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."

51. In paragraph 30 under the heading "My decision on the asylum appeal" the Adjudicator wrote:

"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".

52. Subject to an additional ground of appeal to which I return later, that finding is not challenged. The asylum claim failed because she was unable to show persecution for a Convention reason (see Adan v. SSHD [1999] 1 AC 293).
53. Turning to the Article 3 claim, the Adjudicator referred to the situation in Mogadishu as being volatile:

"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."

54. The Adjudicator described the appellant as a fit young woman with numerous relatives in Mogadishu, including relatives from her husband's family. She would not be returning to a town where she was alone and vulnerable. The Adjudicator did not find it likely that she would be subject to treatment that amounts to a violation of her rights under Article 3.

"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."

55. The Adjudicator compared Mogadishu with NW10 and went on to say that the appellant "has the protection of family and clan members".
56. The Adjudicator dismissed the Human Rights appeal.
57. The appellant sought permission to appeal. Dr Storey, Vice President rejected many of the grounds. In particular he rejected those grounds in which there was a challenge to the adverse credibility findings. Dr Storey wrote:

"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."

58. Dr Storey then wrote:

"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."

59. Ms Webber accepted that the reference to the Refugee Convention was otiose given the findings of the Adjudicator which could not, after the refusal of permission, be challenged. The appellant had failed in her Refugee claim and the only issue outstanding, following the refusal of permission to appeal on the other grounds, was her Article 3 claim.
60. In my view it is very clear that the ground of appeal upon which permission to appeal was given was very narrow.
61. Dr Storey sat with the President, Hodge J, in the AIT. Giving the judgment of the AIT, the President stated (in paragraph 6) that the appellant:

"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."

62. Ms Webber takes issue with that conclusion.
63. The President, having examined various authorities, concluded:

"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".

64. Ms Webber wishes to challenge this conclusion.
65. As Ms Webber rightly says, the word protection may be used in two different senses in refugee or Article 3 claims. Firstly, in ordinary parlance it may be used to mean the de facto support and assistance which will be available to the claimant (for example from friends, family, clan or similar) which, because it is present, demonstrates that there is no sufficient risk of the kind of harm which might otherwise bring the claimant within either the Refugee Convention or Article 3. Secondly, the word may be used as a technical term of art to describe the apparatus of the state (and query of some other organisation) which provides a sufficient system of discipline, or law and order to demonstrate, in the case of the Refugee Convention, that the country of origin adequately prohibits any risk of persecution which the claimant faces from a non-State source, and, in the case of the ECHR, that a return to the country of origin would not put the UK in breach of its Article 3 obligations. In the former sense the existence of 'protection' is a pure question of fact. In the latter sense, if one gets to it, there have been different expressions of legal opinion on the question whether the 'protection' can only emanate from a state or whether some other organisation in sufficient de facto control may be considered to provide it: see Gardi v SSHD [2002] EWCA Civ 750; [2002] 1 WLR 2755.
66. Ms Webber's contention is that when the Adjudicator here referred to the protection of the claimant's family and clan, she was addressing protection in the second sense, viz the legal term of art. I am quite clear that she was not. As the AIT held in paragraph 6, and as the context makes clear, she was addressing the existence or non-existence of the necessary risk. If the necessary risk does not exist, one does not get to the question of whether there is or is not sufficient 'state' protection in the second sense. It may be that Dr Storey, when granting permission to appeal to the AIT, considered that it was arguable that she had used the word in the second sense, but the finding of the AIT is, correctly in my view, that in fact she had not. That the AIT, having before it a claimant to whom permission to appeal had been granted on the Gardi point, went on to express (obiter) its opinion on it, does not mean that that opinion can form a basis of further appeal to this court. That disposes of all the original grounds.
67. Ground 2 of "Further Grounds of Appeal states:

"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."

68. Ms Webber abandoned the last sentence during the course of argument.
69. She took us through the grounds of appeal which were referred to by Dr Storey when he granted permission to appeal. Even if this further ground of appeal comes within paragraphs 2.5 and 2.6, which I doubt, permission was granted to the appellant on and only on "the quality of protection" issue or "more specifically, the issue of whether majority clan protection in present day Somalia is capable of providing protection."
70. By virtue of rules 62(7) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 the reconsideration which was carried out by the IAT is limited to the grounds upon which the IAT granted permission to appeal (subject to a possible exception to which I return shortly). There is no arguable merit in this ground.
71. I turn to the second further ground which states:

"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."

72. This ground relates, Ms Webber accepts, only to the period of time from her arrival at the airport to her arrival at her home or new home in Mogadishu. Reference is then made in the ground to R. v SSHD, ex parte Robinson [1998] QB 929. This ground is said by Ms Webber to satisfy the Robinson test. In that case Lord Woolf giving the judgment of the Court said at page 946:

"...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."

73. The particular "point of Convention law" to which Ms Webber says that Robinson applies is that to be found in N M which I have already considered in the AG appeal.
74. The decision of the IAT in NM is dated 31st March 2005. The decision in NM precedes the AIT's decision in the appellant's case, which is dated 25 July 2005. It post-dates however, the decision of the Adjudicator which is dated 27 January 2005. Thus Ms Webber accepted in the course of argument that this ground of appeal could only relate to the AIT's decision and not that of the Adjudicator.
75. Does this ground have any arguable merit? I shall assume that it is arguable that the decision of Robinson remains good law notwithstanding the changes to the Rules of Procedure. I shall also assume for the purposes of the application for permission to appeal that the Robinson principle could bite on a Country Guidance case such as NM.
76. In so far as Ms Webber seeks to rely on the same points as she argued on behalf of AG, I have already expressed my views about that. Mr Jay in his skeleton argument wrote:

"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.

77. Given the adverse credibility finding, she has been found to be a member of a majority clan. All that she had to do is to get from the airport to her home in Mogadishu. Given the findings about the adequacy of protection in the first sense for the appellant from both her relatives and her clan members, the result of the appeal could not arguably have been different, even if the AIT had considered the NM case. I see no merit in this ground. That concludes my reasons for our conclusion that permission to appeal is refused.

AA

78. The appellant is a citizen of Somalia born in January 1975. He arrived in the United Kingdom clandestinely on 9 November 2003 and applied for asylum two days later. The Secretary of State rejected his asylum application in December 2003. The appellant appealed that decision and that appeal was heard and dismissed by an Adjudicator on 25 February 2004. However a subsequent appeal to the IAT by the appellant was successful and the case was remitted for a fresh hearing. That hearing took place before Mr D. R. Humphrey an Immigration judge. He promulgated his determination on 31 August 2005. In the last sentence of his determination and reasons he stated:

"I therefore dismiss this appeal on both asylum and human rights grounds".

79. By virtue of the procedural provisions that apply to this kind of reconsideration the appellant has the right to seek permission to appeal to this court. Mr Humphrey wrote in paragraph 4:

"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."

80. In paragraph 11 the judge gave further details of the appellant's claim and said that he claimed to be a member of the sub-sub-clan Baharsufi. According to the appellant he was born and raised in Mogadishu where his father was a businessman owning two shops.
81. The judge made a series of adverse credibility findings. In paragraph 24 he found totally implausible the appellant's claim that in an attack on his home in December 1995 by the USC militia he survived a hand-grenade blast in a small room which blast killed one brother, injured the other and was of sufficient strength to demolish a wall. The appellant was claiming that shrapnel had hit him all over the upper body and head. The judge pointed out that the medical reports submitted on the appellant's behalf made mention only of an entry and exit wound and a three centimetre scar. According to the appellant the entry and exit wound were caused by a bullet fired at the same time. Mr Bedford who appeared for the appellant attempted to explain the absence of any other injury on the basis that the doctor had been concentrating on the claimed bullet wounds. As to this the judge said:

"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."

82. Relying on the appellant's oral account of the size of the room and of the injuries to his two brothers, the judge found that the appellant's account was implausible. He also noted inconsistencies in the account given by the appellant of the attack.
83. In paragraph 25 through to 32 the judge made a detailed analysis of why he did not believe the appellant's account of how he was able to leave Somalia with the assistance of an agent who was arranged and paid for by the appellant's paternal uncle in the USA. The appellant claimed to have been informed that his paternal uncle in the USA had made contact with a step brother. The appellant, so he said in his original statement, asked if contact could be made with his uncle on his behalf as he could not afford the telephone charges. The uncle was contacted and the appellant asked for urgent financial assistance. In his oral testimony, so the judge found, the account changed and the appellant claimed that a person had come from the USA, made contact with the appellant's step brother in Mogadishu and had then given the appellant's uncle his stepbrother's telephone number. The judge went on to say that later this account changed and the appellant claimed that since his stepbrother did not have a telephone a neighbour's telephone was used. The uncle had telephoned the neighbour from the USA and the appellant spoke with him and asked for assistance. In paragraph 29 the judge wrote:

"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."

84. In paragraph 30 the judge wrote:

"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."

85. The judge continued in paragraph 31:

"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)

86. There is a challenge concerning the underlined words.
87. In paragraph 32 the judge continued:

"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."

88. In paragraph 33 the judge found that if the appellant was indeed a genuine member of the Banadiri sub-clan Bandhabow he would have been able to provide a more detailed account of the traditions of the clan than he was able to do. He also did not find credible the appellant's evidence that the translation had not been accurate.
89. In paragraph 34 the judge said:

"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."

90. Mr Bedford attacked this finding and referred us to background material. However, the judge's conclusion depended in large measure on his assessment of the colour of the appellant's skin - a matter for the fact finder.
91. In paragraph 35 the judge concluded:

"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."

92. In paragraph 36 he found destructive of the appellant's credibility, his confessed ignorance of the culture and tradition of his step-mother's clan despite having lived amongst them.
93. In paragraph 37, a paragraph which forms the subject matter of a challenge, the judge dealt with the evidence of the appellant's cousin, a Mrs Osman. According to the judge she gave evidence which was consistent with that given by the appellant as to how they knew each other in Somalia, how often they saw each other and how they were related. He referred back to his findings that the appellant had not been truthful and went on to say:

"I am not persuaded that there has not been collusion and careful preparation of consistent accounts".

94. He found that the evidence of Mrs Osman in support of the appellant's false claim to be Banadiri was itself untruthful.
95. In paragraph 38 he found that the appellant had fabricated his claim to be a member of a minority clan.
96. Ground one of the grounds of appeal reads as follows:

"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."

97. Mr Bedford relies upon the decision of Forbes J in R (on the application of B) v The Special Adjudicator [2002] EWHC 1469 (Admin). The adjudicator had made an adverse credibility finding before going on to consider what Forbes J described as the "important and significant evidence" of two doctors. In the words of Forbes J (paragraph 21) "that was putting the cart before the horse". He said that the evidence of the doctors was strongly corroborative of the account given by the claimant and his wife about the serious rape that was suffered by the wife. It was therefore necessary for the adjudicator to take that evidence into account as part of a consideration of all the evidence, before coming to any conclusion as to the credibility of the claimant and his wife. This issue has also been considered by the Court of Appeal on a number of occasions, see for example Mibanga v. SSHD [2005] EWCA Civ 367 and Semu v Secretary of State for the Home Department C5/2005/2286 in which Rix LJ gave the first judgment being a judgment with which both Auld LJ and I agreed.
98. As often happens in the area of asylum law a conclusion entirely appropriate to the facts of one case becomes elevated to a rule of law applicable to all cases.
99. In the present case the evidence of the appellant about his wounds, about his departure from Somalia and about his knowledge of the clan were quite independent of any evidence that Mrs Osman could give. The judge was, in my view, quite entitled to approach the facts of this case in the way that he did. That he rehearsed first the evidence of the appellant and next the evidence of Mrs Osman does not mean that he failed to consider the question of the appellant's credibility as a whole.
100. In ground 2 complaint is made of the failure of the judge to refer to a submission made by Mr Bedford. Mr Bedford had submitted, contrary to the conclusion that the judge was to reach in paragraph 35, that the appellant had not prepared himself by research. He submitted that what the appellant had said was accurate and that the appellant could not have found that material in the "2000 Minorities Report or the 2004 Joint Fact Finding Report". The thrust of Mr Bedford's argument is that the judge is required to deal with every material submission made on behalf of an appellant. That cannot be right. In any event, if the appellant did want to prepare himself by research it seems unlikely that he would have used background material available to those who specialise professionally in this area.
101. In ground 3 it is said that the judge failed to give "any or any intelligible reason for why failure to establish that [the appellant] was hurt in the grenade attack wholly undermined the claim to be Banadiri." This ground misunderstands the judge's task. The judge said that if the appellant's account about the grenade attack was true, then one would have expected to see medical evidence in support of it. The absence of such medical evidence is just one step in the conclusion reached by the judge that the appellant was not credible. If he is not credible that may undermine the evidence given by the appellant about his clan membership.
102. I accept that it might have been better if the judge had reached more tentative conclusions as he proceeded through the various matters. If he had approached the matter in that way he could then have brought all the different strands together and reached his adverse credibility finding. However, the fact that the judge did not approach it in this way does not, on the facts of this case, give rise to a ground of appeal with any real prospect of success.
103. In ground 4 it is said:

"The Immigration Judge failed to direct himself in accordance with AJH (Somalia) [2003] 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."

104. In that case the Adjudicator had not believed the account of the second appellant. Having not believed it, he did not then go on, as the AIT held he should have done, to consider whether he would be at risk in view of his undisputed clan or tribal identity. The AIT said:

"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."

105. That is not this case. Having disbelieved the appellant, the judge rightly treated him as a member of a majority clan. NM shows that members of a majority clan are unable to show the necessary real risk, except, so it is said, on arrival at the airport or on their way home to Mogadishu.
106. Ground 5 attacks the reference in paragraph 31 of the determination to "the absence of any corroborative evidence by letter or any other means from his paternal uncle". The judge was not requiring corroboration. He was merely drawing a conclusion from the absence of corroboration. The judge was entitled to do so provided he bears in mind the difficulties faced by an asylum seeker of producing corroborative evidence.
107. In ground 5 also it is said that the judge failed to quote any intelligible reason why the absence of any such corroboration in relation to the appellant's account of his escape negates the credibility of his claim to be a minority clan member. For reasons which I have just given this is without any arguable merit.
108. The issue was whether the appellant's claim to be a minority clan member was credible. The judge was entitled to look at his evidence about how the appellant departed from Somalia in determining the appellant's general credibility. Having found the appellant lacking in credibility on the various collateral issues, the judge is entitled to take that into account in deciding whether he is credible on the principal issue.
109. Mr Bedford prepared further grounds of appeal having seen the grounds of appeal prepared on behalf of AG. It is said that the judge failed to consider:

"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".

110. That argument was not put to the judge but, as Mr Jay accepts, this is not determinative given the special procedures for reconsiderations of this kind. Mr Bedford accepted that if this argument was right no one could be returned to Somalia. That is quite inconsistent with the decision in NM. This ground has no real prospect of success.
111. Ground 7 restates in different language the principal ground in the AG case. Mr Bedford made, in particular, one further argument about AG which I have already considered in giving my reasons for dismissing the appeal in that case. As in the case of AG, this ground also fails.
112. For these reasons this application for permission to appeal fails.

G.H.

113. Having prepared my judgment in draft I took the opportunity to check that there were no cases in the bundle of authorities prepared for the hearing which might affect my conclusions. To my surprise I came across G.H. v. Secretary of State for the Home Department [2005] EWCA Civ 1182. I say to my surprise because the case concerns the very issues with which these appeals are concerned and the Court of Appeal (The President, Keene LJ and Scott Baker LJ). It is unfortunate that we were not referred to it in argument. We asked for and received further written submissions.
114. GH was a Kurd from Iraq. He lived in Suleymaniya, a city in the Kurdish Autonomous Area ("the KAA") in North Iraq, from which Saddam Hussein's regime forces had been expelled in 1991. His asylum and human rights claim failed - the appeal concerned primarily the issue of his return to Iraq. In the words of Scott Baker LJ (paragraph 6):

"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.'"

115. Scott Baker LJ continued (paragraph 14):

"... 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."

116. Having examined both the legislation and authorities Scott Baker concluded:

"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."

117. Keene LJ said:

"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."

118. The President agreed with both judgments.
119. Mr Jay submits that GH is binding. In effect he submits that where no route of return has been specified by the SSHD in his immigration decision (or I would add by means of a policy statement), then the proper mechanism for challenging any subsequent method of removal is by way of judicial review.
120. Mr Jay submits that NM must now be read in the light of GH. He submits that the IAT was wrong in paragraph 121 to say that: "Adjudicators in the context of Somali appeals therefore need to make careful findings concerning internal safety of travel to the extent the evidence permits". He also refers to the passages in paragraphs 122 and 123 (set out above in paragraph 21) which deal with mode of return. Absent any direction or policy as to the method of return, Mr Jay submits that the issue is not relevant.
121. Miss Webber submits that in the case of AG, counsel for the respondent confirmed that the appellant would be returned to Mogadishu so this case therefore falls into the category envisaged by GH. Assuming that to be right, the appellant knows the route of return but not the method and, it seems to me, GH could still bite.
122. Miss Webber then stresses the need for the appellant to be provided with the particulars as to the exact time and place of his arrival. Both Miss Webber and Mr Jay point out that removal directions are not required to state more than the country of removal (see Immigration Act 1971, Schedule 2 para. 8(c) and regulation 5(1)(b) of the Notices Regulations 2003).
123. Although Mr Jay is critical of NM in the light of GH, it seems to me that in a Country Guidance case it may well be helpful for all concerned to know the dangers inherent in a method of return that is likely to be used, if known. Those dangers can then inform the SSHD when (or if) removal directions are made. It also seems clear to me that the SSHD, in the light of NM, will have to give details about the method and time of return unless the situation in Mogadishu has changed so the dangers identified by the IAT in NM are no longer present. In the words of Keene LJ:

"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."

124. For my part it may be that Scott Baker LJ overstates the position, at least as far as Somali cases are concerned, when he says:

"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)

125. GH reinforces my conclusion independently reached in paragraph 32 that in cases like the three Somalia cases which we have been considering, Immigration judges are entitled to assume that whatever is required to be done on return to prevent a real risk of Article 3 ill-treatment will be done.
126. LORD JUSTICE HUGHES: I agree.
127. LORD JUSTICE RIX: I also agree.