England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		15 June 2004

1. MR JUSTICE COLLINS: This is a claim by Mustafa Adam for judicial review of a refusal of permission to appeal made by the Immigration Appeal Tribunal as long ago as 21 May 2003. The claim has only been dealt with today because the judicial review claim was not lodged until 11 February 2004. Thus it is way out of time. The explanation given for the delay was that the claimant was let down by his then legal advisors. It was said that he was anxious to, and tried to, pursue an appeal or an application, but was given wrong advice, part of that advice being that he ought to have proceeded by way of statutory review rather than judicial review and that his solicitors did not advise him as they should have done.
2. The explanations are not, in my judgment, in any way satisfactory. I find it somewhat surprising that, notwithstanding the delay, permission was granted. There is nothing I can do about that at this stage.
3. The claimant asserted that he was a member of a sub clan of the Ashraf clan. As such he was, like all sub clan members, liable to persecution in Somalia. Unfortunately his family had been killed in a raid on their house in 1995 when the claimant was 17 years old. He was born on 1 January 1978. Fortunately for him, his father was a friend of Sheikh Abdi, who was a member of a majority clan. The claimant was able to obtain protection from Sheikh Abdi and was treated as a member of Sheikh Abdi's family. He told the adjudicator that, notwithstanding that, he had to keep out of the way when any visitors attended on the Sheikh, particularly if they were official people. He talked about having to hide under the bed. The Secretary of State rejected his claim for asylum, largely on the basis that he did not accept that he had been living in Somalia or was a member of the Ashraf clan. When the matter claim before the adjudicator, the claimant's account was found to be, at least in part, acceptable. The adjudicator accepted that he was a member of the Ashraf clan and had been living in Somalia. However, he did not accept the account that the claimant gave of how he received wounds leaving scars which had been described by a doctor. The claimant alleged that he had been shot at his house or whilst running away, but the adjudicator did not accept that. The key findings in its determination are as follows:

"45. Whatever the background, it is abundantly clear that the appellant spent seven years under the protection and in the custody of his father's friend, Sheikh Abdi who was a member of the majority Marehan clan. Miraculously, although the appellant described that clan as being his family persecutors, he was afforded that protection. Sheikh Abdi himself was married, so it is said, to a member of the Ashraf tribe, but his wife was not the victim of any attack by other members of the Marehan clan during that period. The Sheikh was respected and apparently left alone and unmolested.

46. It is evident that although the appellant talks of having to hide among the Sheikh's children, nonetheless this was successful and he was not identified by visiting members of the Marehan clan that he was other than a child of Sheikh Abdi and member of the Marehan clan. He said that if he had been found out he would have been killed. He was not found out and therefore enjoyed the protection of his adoptive father.

47. Although in oral evidence the appellant explained that he had to leave the family in 2002 because he had grown up and was no longer able to hide, I do not accept that account. He must have reached maturity shortly after 1995 and was a young man. I find that there is nothing which occurred in 2002 which caused him to develop a well-founded fear of persecution which caused him to leave at that time. He had every opportunity to leave earlier, if he really feared persecution. I do not find his account of leaving and then discovering the whereabouts of his rich aunt in the United States to be convincing. The civil war went on around him.

48. I find that the appellant had absorbed himself into and been granted the protection of Sheikh Abdi as a member of the majority clan of the Marehan. Accordingly the appellant was no longer at risk of persecution as a member of a minority clan. This goes in some way to explain the deficiencies in his knowledge of his clan, because he had aligned himself with and adopted by the Marehan clan."

4. The adjudicator went on to find positively that his reason for coming to the United Kingdom was not to find refuge from persecution but to achieve economic prosperity. Accordingly he had no well founded fear of persecution by reason of his membership of a minority clan and he had been able and, clearly in the adjudicator's view, would be able to avail himself of protection from the Marehan clan with the close connection he had with Sheikh Abdi.
5. It seems to me quite clear from that determination that the adjudicator was deciding that, although he was a member of the Ashraf clan, in the circumstances that was not something which would lead to the persecution that might otherwise occur because of his membership of a minority clan. That was because he had spent seven years under the protection of Sheikh Abdi and had therefore been regarded as a member of a majority clan. There was no reason why he should not return to that protection were he to go back to Somalia.
6. It is true that the claimant had asserted that his protection was somewhat precarious in that he had to hide and lie under the bed etc, but it is obvious that the adjudicator was not impressed with that evidence. The fact that he found positively that the claimant was an economic migrant and was not in any way fleeing persecution makes it apparent that he did not accept the account that had been given by the claimant.
7. Why then is this claim made, bearing in mind it is only if there is an arguable point of law that it can come to this court? The answer lies in ground 9 of the grounds upon which the judge gave permission. This reads:

"There is no finding at all as to current risk: There is no finding by the Adjudicator as to whether given that he accepts the Claimant is from the minority Ashraf clan and given the background material, the Claimant will face persecution on return. On any reading of the determination, the Adjudicator has failed entirely to address his mind to the treatment the Claimant is likely to face on return to Somalia; whether he would encounter the Sheikh and whether, if so, the Sheikh's protection would still be available to him."

8. For the reasons I have already given, and looking at the adjudication as a whole, it is perfectly clear that the adjudicator did apply his mind to those issues. It is obvious from a fair reading of his determination that he took the view that the claimant could go back to the protection of the Sheikh. Indeed, he says that in terms in paragraph 48 where he says that he had been granted the protection of the Sheikh, and "was no longer at risk of persecution as a member of a minority clan" and that he could avail himself of the protection of the Sheikh.
9. It is true that the Adjudicator deals with it on the basis of the situation as it was when the claimant left, but it is in my judgment quite absurd to suggest that, in the context of the determination, he was not aware of his obligations to consider the risk on return and did not decide, as he was fully entitled to decide on the material before him, that there was no risk because the claimant could obtain protection.
10. Those then representing the claimant did seek to appeal to the tribunal on five grounds. What has become ground 9 on the judicial review claim was not expressly relied on, although Miss Braganza submits that it is at least raised (perhaps not entirely clearly) in paragraph 4 of those grounds. It was, as a result of a claim based on Robinson, said that the tribunal ought to have appreciated the failure by the adjudicator to deal expressly with the risk on return. As I have already indicated it seems to me perfectly clear that it is implicit in the adjudicator's determination that he did just that.
11. There is in my judgment no error of law disclosed in either the adjudicator's determination or the refusal of permission by the tribunal. In those circumstances this claim must be dismissed.
12. MR KENNEDY: I ask that you make the usual order as to costs.
13. MR JUSTICE COLLINS: What we used to call a football pools order?
14. MR KENNEDY: Yes. You are legally aided?
15. MS BRAGANZA: That is right.
16. MR JUSTICE COLLINS: You can have the usual necessary order. I do not think you can resist that application.