England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2
		15th March 2006

1. LORD JUSTICE SCOTT BAKER: The appellant is a citizen of Somalia. She is a Tunni Torre, which is a description of Bantu people. As such she has access to protection of a majority clan, albeit the immigration judge could not say which of two. She arrived in the United Kingdom on 7 June 2004 and claimed asylum. This was refused by the Secretary of State on 3 August 2004. The refusal letter extends over seven pages and gives detailed reasons. She appealed to an adjudicator. Her appeal was heard by Mrs Phillips at Hatton Cross on 22 November 2004 and was dismissed in a decision promulgated on 17 January 2005. She appealed to the Immigration Appeal Tribunal, who by a decision dated 1 April 2005, notified on 7 April, remitted the case for fresh consideration before a different adjudicator because it was arguable that several findings of fact were perverse, i.e. there was an arguable error of law.
2. By reason of the transitional provisions in the legislation, the matter came before an immigration judge at a reconsideration hearing; that was Mr Dawson on 17 August 2005. The terms of the remittal were as follows. I quote from paragraph 2 of the decision of the Vice President, Mr Perkins:

"I gave leave to appeal because the grounds showed an arguable case that the adjudicator's decision was wrong in law. The adjudicator arguably made several findings of fact that were perverse. I indicated that I considered it appropriate for the appeal to be remitted for fresh consideration before a different adjudicator. Neither party has objected to that approach."

3. Mr Dawson reheard the case and rejected the appellant's appeal on both human rights and asylum grounds. Permission to appeal to this court was given by Laws LJ on the basis that there seemed to be a tension between the notion of a redetermination de novo and a reconsideration and that it needed sorting out. This arose because the first ground of appeal was that the appellant complained the immigration judge, Mr Dawson, had looked at the adjudicator's decision and that he should not have done.
4. That ground of appeal has been abandoned, Mr Collins having accepted that it would only be in the most exceptional circumstances that this could amount to an error of law and that it did not in this case. I agree with that. Mr Collins has also abandoned grounds 2 and 3 of his grounds of appeal so that only the fourth ground remains. I shall refer to that in a moment but first a summary of the factual basis of the appellant's claim.
5. Until 1991 the appellant had lived in Mogadishu. In February 1991, Awai militia attacked her home and assaulted her. Following this, she left Mogadishu and went to Goy. In November 1993, she was subject to a further attack. As a result of this attack her husband was killed. The appellant then left Goy with her mother her sister and her three step-children and went to a camp in Kenya. In 1997 she re-married Abdul Rahser Ahmed. She remained in the camp in Kenya until 2004. Then she left and made her way to the United Kingdom, arriving on 7 June 2004. The cost of her journey to the United Kingdom was met by the brother of the appellant's first husband, who lived in Canada and sent money to the appellant's second husband. The journey was arranged after the appellant's step-daughter had been raped in the camp.
6. At the hearing there was no dispute as to the appellant's description of herself as Tunni Torre. The issue in dispute concerned the extent to which protection was available to her as Tunni Torre.
7. The appellant gave evidence before the immigration judge, as did her brother, who had arrived here in April 1998 and was granted asylum in May 2000. The appellant's father is also in the United Kingdom, having arrived here in January 2004 pursuant to family reunion arrangements. The appellant says that she had four sisters, of whom one has died, one came to the United Kingdom in April 2004 and has an asylum claim pending, one is in Kenya, and the whereabouts of the fourth are unknown.
8. The immigration judge did not believe the appellant. He accepted that she was Tunni Torre but rejected her account of events for the period 1991 to 2004. He concluded that the applicant had not lived in Kenya since 1993, that she had not been the victim of an attack in 1991 in Mogadishu, and that her first husband had not been killed in 1993 in Goy, her first husband remained in Somalia, and that if in fact she did marry for a second time, her second husband is also in Somalia, or Kenya, simply in order to commence a journey to the United Kingdom.
9. The one issue on which the appeal was still live concerns the appellant's return to Somalia as a lone female. It is submitted that the immigration judge did not sufficiently address the question how the appellant, as a lone female, could safely get from Mogadishu airport to her home area, which is in the Mogadishu area, and how she would be safe when she had arrived there.
10. Mr Collins relies on the country guidance tribunal decision in NM [2005] UKIAT 00076 a decision given by the then president, Ouseley  J. He said at paragraph 26 in that case:

"The burden of proof lies on the claimant to make out his or her claim in material particulars. If a claimant's evidence does not sufficiently satisfy the adjudicator the adjudicator cannot make a finding on a claimant's home area. There is no duty to make a finding regardless of the quality of the evidence. The appeal has to be decided on the basis that it is not known because of deficiencies in the claimant's evidence and bearing in mind who bears the burden of proof. 'Home area' in the Somali context means not so much place of birth as place of planned origin or planned current control for location. Where however positive findings about plan and home area can properly be made then the prospects of safely reaching that area may become an issue because such prospects impact on the risk of persecution for ill-treatment contrary to article 3."

11. In this case the immigration judge had the difficulty that he could only make limited findings because he disbelieved the appellant. The fundamental key findings which he did make, which are not now challenged, were (1) that she has majority clan protection and (2) that her home area is Mogadishu.
12. The tribunal in NM dealt at some length with the risk of lone women returnees to Somalia. It referred to evidence from Professor Lewis and Dr Luning both of whom said that majority clan protection made a material difference to the level of risk. The president said at paragraph 98:

"Professor Lewis emphasised that for persons with close family members in Somalia the latter would feel under a strong duty to take steps to ensure a safe reception and onward travel. For those here who would have less close links with fellow clan members, payment may be required but we do not understand from anything we have read that the amounts involved would be prohibitive."

13. The tribunal also noted at paragraph 100 that a divorced Somali woman cannot generally rely on the protection of her former husband's clan. However, she can in principle rely on her own clan and clan family. Mr Collins relied on a number of passages in the judgment in NM. These included at paragraph 121:

"The adjudicators in the context of Somali appeals therefore need to make careful findings concerning internal safety of travel to the extent the evidence permits."

14. At paragraph 122:

"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."

15. But Mr Swift for the respondent drew our attention to the next paragraph 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."

16. The issue in the present appeal is whether the immigration judge made sufficient findings to deal with the lone woman issue. There is no doubt that he had the issue clearly in mind. He found it significant that the appellant, her father and her sister did not set out for the United Kingdom until 2004. He thought it reasonably likely that all three and the appellant's other sisters had been living in Somalia with a level of protection that was such that there was no immediate need to leave. He said at paragraph 63:

"I do not find the appellant would be without someone to turn to were she to be returned to Somalia."

He did not accept that when she left Somalia she was without her husband. Either he is still there or if she has re-married, her second husband remains in Somalia or is in transit in Kenya waiting to join her in the United Kingdom. That is how he put it.

17. Mr Collins submits that the husband's position is left in the air. He says support cannot be expected from a divorced husband, and relies on the passage that I have read from the judgment in NM, and says further that a husband in Kenya would not be in a physical position to provide support.
18. Whilst the judge's findings of fact might have been made more specific on the issue of the appellant returning as a lone woman, for my part I am satisfied that the immigration judge dealt with the question sufficiently. There is no doubt about his conclusion. The appellant would not be without someone to turn to. He was not required to go further and identify precisely who that person would be, in the light of the fact that the appellant generally was disbelieved in her evidence.
19. I can see no error of law and I would therefore dismiss this appeal.
20. LORD JUSTICE NEUBERGER: I agree and there is nothing I can usefully add.
21. LORD JUSTICE AULD: I also agree. The appeal is therefore dismissed.

Order: Appeal dismissed.