ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
1. IA/14092/2006 2. AA/13577/2007 & 4. AA/01476/2007
AND THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE ELIAS
| 1. HH (SOMALIA)
2. AM (SOMALIA)
3. J (SOMALIA)
4. MA (SOMALIA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Ronan Toal (instructed by South Manchester Law Centre) for the Appellant 2.
Mr Rick Scannell and Mr Ronan Toal (instructed by Islington Law Centre) for the Appellant 3.
Mr Richard Drabble QC and Mr Graham Denholm (instructed by CLC Solicitors) for the Appellant 4.
Ms Elisabeth Laing QC and Ms Deok Joo Rhee (instructed by Treasury Solicitor) for the Respondents 1, 2. &4.
Mr Colin Thomann (instructed by Treasury Solicitor) for the Respondent 3.
Hearing dates: 13 January 2010, 1-3 March 2010
Crown Copyright ©
Lord Justice Sedley:
(a) How is danger arising from generalised or indiscriminate violence to be appraised?
(b) On appeal against an adverse immigration decision, is the appellate tribunal's decision only whether an individual can in principle be returned to his home state (or part of it) or is the tribunal required to consider the appellant's safety at the point of return and on any journey that he or she must make from there to reach safety; or does this latter issue arise only when removal directions are given?
(c) What is the nature of the burden of proof resting on a person who contends that deportation will put his or her life at risk?
"A third country national … who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned if returned to his or her country of origin …. would face a real risk of suffering serious harm as defined in article 15, ….., and is unable or owing to such risk unwilling to avail himself or herself of the protection of that country."
Article 15 defines serious harm:
"Serious harm consists of
(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
"…article 15(c) of the Directive, in conjunction with article 2(e) of the Directive, must be interpreted as meaning that the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances, and the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place …. reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat."
82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part "immigration decision" means—
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation take
effect the person has no leave to enter or remain,
(I) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under
[section 10(1)(a), (b), (ba) or (c)] of the Immigration and Asylum Act 1999 (c 33) (removal of person unlawfully in United Kingdom),
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions
under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c 77) (control of entry: removal),
(hal a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave), .
(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),
(ia) a decision that a person is to be removed from the United Kingdom by way of directions under
paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c 77) (seamen and aircrews),
(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),
(J) a decision to make a deportation order under section 5( 1) of that Act, and
(k) refusal to revoke a deportation order under section 5(2) of that Act.
(3A) Subsection (2)0) does not apply to a decision to make a deportation order which states that it is made in accordance with section 32(5) of the UK Borders Act 2007; but—
(a) a decision that section 32(5) applies is an immigration decision for the purposes of this Part, and
(b) a reference in this Part to an appeal against an automatic deportation order is a reference to an
appeal against a decision of the Secretary of State that section 32(5) applies.
(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.
84 Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision is not in accordance with immigration rules;
(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c 74) or Article 20A of the Race Relations (Northern Ireland) Order 1997 (discrimination by public authorities);
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the
decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.
(2) In subsection (1)(d) "EEA national" means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).
(3) An appeal under section 83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention.
(4) An appeal under section 83A must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention.
85 Matters to be considered
(1) An appeal under section 82(1) against a decision shall be treated by [the Tribunal] as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, [the Tribunal] shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under section 82(1)[, 83(2) or 83A(2)] against a decision [the Tribunal] may consider evidence about any matter which [it] thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10—
(a) subsection (4) shall not apply, and
(b) the Tribunal may consider only the circumstances appertaining at the time of the decision to
The changing country guidance on Somalia
• the first is that of HH, raising a question (which is case-specific and so not of general significance) of the materiality of an error of law in relation to the scope of the Qualification Directive
• the second, that of one of the two appellants in AM, and
• the third, J, decided by the Administrative Court in the wake of AM and AM, counterposes two radical arguments: that the point and route of return are excluded by law from an immigration decision that an individual is to be removed, and that they are required by law to be included in such a decision.
• the fourth is the appeal of a deportee, MA, also decided in the wake of AM and AM and turning on the onus and standard of proof concerning safety in Mogadishu.
HH's case: danger from indiscriminate violence
The AIT determination
"…it seems to us that those words point clearly to the intention to create a high threshold for succeeding under article 15(c), directly analogous to the well-established high threshold required to demonstrate a breach of article 2 or article 3 of the ECHR. Furthermore, at least on the basis of the submissions made to us, we consider that the concept of "an individual threat" requires there to be some form of "differential impact", of the kind recognised by the House of Lords for the purposes of the 1951 Geneva Convention in Adan  1 WLR 1107 and by the ECtHR for the purpose of article 3 in Vilvarajah v United Kingdom  14 EHRR 248. Whether an individual can show such a "differential impact" will depend on the facts. We shall later return to this matter in the context of the three appellants. It is, however, important to bear in mind in this regard Recital (26) [of the Qualification Directive] which states in terms that the risks to which a population of a country or a section of the population is generally exposed do not normally create in themselves an individual threat which would qualify as serious harm."
It is clear from that passage that the AIT had in mind that article 15(c) would benefit an appellant only if he or she could show some threat that was particular to him or her over and above that to which the whole population of the area was exposed.
"…the significance of the words that the precede the word "threat" in article 15(c), and of the words "life or person", which follow, together with the requirement arising from article 2(e) for there to be "substantial grounds for believing" the person concerned to be at "real risk" if returned, mean in practice that there is likely to be very little scope for a person to succeed in a claim for humanitarian protection by reference solely to paragraph 339C(iv) or article 15(c); in other words, without showing a real risk of ECHR article 2 or article 3 harm (and thus serious harm within the meaning of paragraph 339C or the Qualification Directive".
In short, the AIT was saying that article 15(c) of the Qualification Directive did not add anything to the provisions of articles 2 and 3 of the ECHR. They reiterated that view in paragraph 334.
"Her removal in pursuance of the decision to deport her would not give rise to a real risk of her suffering article 3 ill-treatment or serious harm within the meaning of the domestic legislation implementing the Qualification Directive. Notwithstanding the fact that she would return to a city which is in a situation of armed conflict, she has failed to show that there are substantial grounds for believing that she would face a serious and individual threat to her life or person by reason of indiscriminate violence in the situation of that armed conflict. On the evidence, being a woman, without more, is not a sufficient differentiator."
AM's case: the justiciability of the route of return
"207. As noted earlier, the only accepted fact regarding AM1 is that he is from Jowhar. On the latest evidence the population of the town is not in general exposed to serious harms and there is no longer any significant fighting there, as the insurgents have gained control of it (as they have of most of central and southern Somalia). Very recently, the UIC appears to have won the internal battle of control amongst the insurgents: see para 185 above. There is evidence that en route travel to Jowhar is hazardous, but, for reasons given earlier, that is not a matter which falls for our consideration in the context of Somalia appeals currently: it must be a matter for the respondent, as and when removal arrangements are being finalised, to satisfy herself that there would be safe en route travel for this appellant. Accordingly the appellant has failed to show that if removed he would face a real risk of persecution, serious harm or treatment contrary to Article 3 ECHR. The decision we substitute for that of the immigration judge (who materially erred in law), is to dismiss AM1's appeal."
"200. As regards Jowhar, it is stated in the Amnesty International May 2008 report, that "one of the most dangerous routes is the road between Jowhar and Beletweyne, the main road north out of Mogadishu." (COIS, 27.06). It would appear that AM2's route from the airport would be through or around the outskirts of Mogadishu and then onto this road. An international aid worker statement contained within the Nairobi evidence (p.15) states that travel to Jowhar from Mogadishu was "very very dangerous…To travel to Jowhar you would need to leave the area from Tafig and pass through an area controlled by Al Shabab and also freelance militias…" A COIS Reply dated 24 October 2008 cited Garow Online reporting that: "[l]ocals told Radio Garowe that freelance militiamen have robbed civilians travelling the 90 Km stretch of road linking Jowhar to the national capital, Mogadishu". On the basis of this evidence we consider that travel from MIA to Jowhar would not be safe for involuntary returnees presently."
"178. In light of the above, we accept that since HH the situation in Mogadishu has changed significantly, both in terms of the extent of population displacement away from the city, the intensity of the fighting and of the security conditions there. On the present evidence we consider that Mogadishu is no longer safe as a place to live for the great majority of its citizens. We do not rule out that notwithstanding the above there may be certain individuals who on the facts may be considered to be able to live safely in the city, for example if they are likely to have close connections with powerful actors in Mogadishu, such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs. However, barring cases of this kind, we consider that in the case of persons found to come from Mogadishu who are returnees from the UK, they would face on return to live there a real risk of persecution or serious harm and it is reasonably likely, if they tried staying there, that they would soon be forced to leave or that they would decide not to try and live there in the first place."
The "strong" case
The "weak" case
"24. Before we turn to what is known about the route and method of return in the two appeals before us, we need to say something more about the circumstances in which, when the route and method are implicit in the decision, en route risk can become a relevant dimension for assessing whether a person has a well-founded fear of persecution under the circumstances. More than one approach might be thought possible. On one approach consideration of en route risk is only valid in a case in which a person has established a well-founded fear of persecution in his home area. If a person has not established a well-founded fear of persecution in his own area, he is not a refugee. He is able (notionally) to live in his own area, even if he cannot get there. At least under the Refugee Convention, he is not entitled to the surrogate protection of the international community because at home he would be safe. On this approach it is to be presumed that the sending state can ensure a person gains access by some route to the safe home area, if there is found to be one.
25. The other approach is to consider that even in the case of a person who fails to establish risk of persecution on return to his home area, it can still , albeit in circumstances which will of their nature be highly unusual, be necessary sometimes to consider risk at the airport on arrival or en route risk homewards.
26. In our judgment, whilst the first approach will often serve to determine an appeal one way or the other, it cannot be assumed that en route risk is not capable in itself of giving rise to a well-founded fear of persecution. Consider the following sequence: (1) it has been decided that a person can live safely in his home area; (2) the immigration decision against him clearly identifies (or has implicit in it) the route and method of return to his home area; (3) but there is strong evidence that return via this route and by this method would expose him to a real risk of persecution. It seems to us that this sequence meets the requirement of Article 1A(2) (at least as regards persecution), since although the risk to him only arises in part of the country of nationality, it will necessarily (by virtue of the known en route and method of return) be to that part of the country to which he is returned (or has to travel through) and, in that part of the country that risk will arise. Such risk can be at the airport itself or en route from the airport. Such an approach can be seen in many decisions of the Tribunal dealing with risk on return to the airport: e.g. AA (Involuntary returnees to Zimbabwe) Zimbabwe CG  UKIAT 000144, AA (Risk for involuntary returnees) Zimbabwe CG  UKAIT 00061, HS (returned asylum seekers) Zimbabwe CG  UKAIT 00094."
"31. The insuperable difficulty that besets Mr Toal's submission is that in the context of Somali cases there are more uncertainties surrounding method than are normally to be found in the context of removals to other countries. Even if he is right and there are nevertheless fewer "eventualities" uncertain now than was the case in the second half of 2006 when AG was decided, they are still very significant ones. There are uncertainties (at least currently) about what travel documents will be required and/or accepted; the timing of the return flights (so as to ensure parties to the conflict do not seek to fire at civilian aircraft) and, crucially, about what arrangements need to be in place to ensure safe en route travel. At the time of AG, as now, it cannot be ruled out that ensuring such safety may depend on returnees at least having had the opportunity to arrange an armed escort beforehand. All will depend on the situation at the actual time of any enforced removal."
It was for this reason that, at the end of their determination, they held that, because AM's route of return fell outside their remit, his claim failed.
The appellant's situation
J's case: the safety of the route of return
1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.
2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.
3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin."
MA's case: safety in Mogadishu
"As already noted the movements of population out of Mogadishu in the past two years have been unprecedented. UN sources have estimated (at various times) that 400,000, up to as many as 750,000 (or around one third to a half), of the population of Mogadishu have been displaced. An 8 April 2008 Voice of America report states that two thirds of Mogadishu have been turned into an urban battleground. Since the beginning of 2008 there have been significantly fewer returns. Whatever the precise figures, it is clear that the ongoing violence has forced substantial numbers to flee the city more than once and flight seems an ongoing process: the IRIN report of 29 September 2008 cites Elman estimates that 18,500 people recently fled their homes due to the fighting and shelling (COIS, A 4). The COIS Reply dated 24 October 2008 states that: "[a]ccording to the UNHCR an estimated 5,500 people were displaced from the city during the week and over 61,000 since 21 September 2008". Armed clashes have increasingly destroyed housing, market areas (Bakara market has been deliberately shelled) and infrastructure and the recent closure of the airport is likely to make matters in Mogadishu worse. According to Grayson and Munk, the aid community has been largely ineffective in providing the necessary aid to those who have stayed in Mogadishu (Nairobi evidence 65). They also state that Mogadishu is a "ghost town" and that only the most vulnerable remain there."
"In light of the above, we accept that since HH the situation in Mogadishu has changed significantly, both in terms of the extent of population displacement away from the city, the intensity of the fighting and of the security conditions there. On the present evidence we consider that Mogadishu is no longer safe as a place to live for the great majority of its citizens. We do not rule out that notwithstanding the above there may be certain individuals who on the facts may be considered to be able to live safely in the city, for example if they are likely to have close connections with powerful actors in Mogadishu, such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs. However, barring cases of this kind, we consider that in the case of persons found to come from Mogadishu who are returnees from the UK, they would face on return to live there a real risk of persecution or serious harm and it is reasonably likely, if they tried staying there, that they would soon be forced to leave or that they would decide not to try and live there in the first place.
It will be evident from the above findings relating to Mogadishu that although we follow KH (Iraq) in considering that Article 15(c) has a protective scope additional to that afforded by the Refugee Convention and Article 15(b) of the Qualification Directive (and Article 3 of the ECHR), it is unnecessary on the facts of this case to rely on such additional scope, since return to that city for the great majority would amount to a real risk of persecution, serious harm and ill-treatment."
" … It may not be necessary for the appellant in such circumstances to say much, but he must say something, adduce some evidence, that puts him in a vulnerable position, before the effective burden of contradicting his case passes to the Secretary of State."
Lord Justice Laws and Lord Justice Dyson specifically agreed with that analysis with respect to those two appellants.
"The fact (if it be so) that it is reasonably likely that any 17 year old girl from Eritrea, about whom nothing else relevant is known, left the country illegally does not entail the conclusion that this particular 17 year old girl did so. The reason is that the probability that a particular person has or has not left illegally must depend on the particular facts of her case. Those facts may produce a conclusion quite different from that relating to illegal exit by members of such a class of persons about whose particular circumstances, however, the court knows nothing more than their membership of the class. There may indeed be a general probability of illegal exit by members of the class; but the particular facts may make all the difference. ….
The position would only be otherwise if the general evidence was so solid as to admit of only fanciful exceptions; if the court or tribunal concluded that the 17 year old must have left illegally whatever the particular facts."
"In substance, the issue for the judge was whether MY had established that there was a reasonable likelihood that she had left Eritrea illegally. I agree with Buxton LJ that the fact that MY herself had given no credible evidence as to how she left Eritrea was not conclusive of that issue, which had to be determined on the basis of all the material that was before the judge. But I agree with Laws LJ that the fact that there is a reasonable likelihood of illegal exit by members of a particular category, say 17 year old girls, does not necessarily entail the proposition that there is a reasonable likelihood that the exit by a particular member of that category was illegal. Unless it can safely be said that exit by any 17 year old girl is illegal, whether it is reasonably likely that the exit by an individual 17 year old girl was illegal will depend on the facts of her particular case. Her failure to give a credible account of those facts may lead to the conclusion that she has not shown that there is a reasonable likelihood that her exit was illegal.
Laws LJ says that where a case depends entirely on general evidence, it will only succeed if, fanciful exceptions apart, the claimant "must have left illegally whatever the facts"  and unless the "possibility that the particular facts may make a difference is effectively excluded . I agree."
The AIT decision.
"The Tribunal is not unfamiliar with the difficulties created by appellants who have not been truthful but who still may be at risk. This was considered by the Court of Appeal in GM(Eritrea) v SSHD  EWCA Civ 833. We must be very careful not to dismiss an appeal just because an appellant has told lies. Even if very large parts of his story have been disbelieved it is still possible that the appellant has shown that he would be at risk on return. An appellant's own evidence has to be considered in the round with other evidence and that can include unimpeachable evidence from expert reports or country guidance cases or other evidence about the general state of affairs in that country."
Then at paragraph 107 the Tribunal noted that, while they did not believe the appellant:
"… we have to decide if the background conditions show that he will be at risk."
They referred to the passage in paragraph 178 of AM and AM to the effect that a person may be safe in Mogadishu if he or she has close connections with powerful actors there, and they accepted that there was no positive evidence that this appellant did have such links. In paragraph 109, however, they said this:
"The difficulty is that the appellant has not told us the truth about his links and circumstances in Mogadishu and we cannot exclude the possibility that he is a person with connections of this kind. The point is that it is not fanciful to say that he would not necessarily be at risk on return. Some people are not. Even though the appellant has to prove only a real risk rather than a probability of him being at risk we cannot make the necessary findings when he will not tell the truth about his connections and contacts there."
"Paragraph 178 of AM does not give an exclusive list of people who are not at risk. It makes the point there are people who are not at risk. The burden is on the appellant and he has not told the truth about his links with Mogadishu and we are not able to say that he is a person who has shown he would be at risk there. He has stopped proper enquiry of a kind that might reveal the links and protection he would have. It would be very sad if, by so doing, the appellant has deprived himself of protection that he would otherwise need but he has told lies and must accept the consequence of that. It does diminish his credibility and makes it harder for him to prove his case."
Grounds of appeal.
"and we cannot exclude the possibility that he is a person with connections";
and later in that paragraph:
"Even though the appellant has to prove only a real risk rather than a probability of him being at risk we cannot make the necessary findings when he will not tell the truth about his connections and contacts there."