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 WC2
		25th February 2004

Wednesday, 25th February 2004

1. MR JUSTICE MOSES: This is an application for judicial review of a decision of an adjudicator promulgated on 15th May 2003. In that decision the adjudicator dismissed the claimant's appeal under the 1951 Refugee Convention and the European Convention on Human Rights.
2. The claimant's case, both in her application for asylum and before the adjudicator, was that she was a Bajuni who had come from Somalia. She said when civil war had started in 1991 she had fled Somalia. She went to Kenya. Thereafter, she said in her witness statement, she escaped from a camp in Kenya where there was inadequate protection, to the United Kingdom where she claimed asylum. She was refused asylum by the Secretary of State.
3. In his decision letter giving reasons for refusal, dated 26th March 2001, the Secretary of State came to the conclusion that she was not a Bajuni. At paragraph 13 he said that for the reasons he set out in his letter she was not a Bajuni and she was not from Somalia and that "for this reason he is not satisfied that you have established that you have a well-founded fear of persecution". At paragraph 17 he repeated that he was of the view that she was not genuinely a Bajuni from Somalia and so did not consider that there were "substantial grounds for believing that there is a real risk that you would face treatment contrary to Article 3". I shall return later to the grounds for refusal, which was not on the alternative basis that, even if she was a Bajuni, it was safe for her to return to Somalia.
4. The reasons that he gave were summarised at paragraph 13: that she did not speak Kibajuni when interviewed; did not speak Somali; lacked knowledge of Kismayo and the surrounding area; the claim that the father was a businessman, it being well-known that most Bajunis are fishermen; and the implausible manner in which she claimed to have left Kenya.
5. He pointed out at paragraph 10 that she spoke Swahili rather than Kibajuni, and he would have expected her to speak Kibajuni as opposed to Kenyan Swahili, especially as she claimed to have lived with a Bajuni community in a refugee camp.
6. Thus it was that language was an important feature of his conclusion that she was not a member of the minority Bajuni clan and therefore was not in need of the protection which this country is obliged to provide to refugees.
7. As I have said, the claimant appealed to an adjudicator. In response to the reasoning of the Secretary of State, those instructed to assist the claimant sought a report from a Dr Virginia Luling. She is an expert in social anthropology with a PhD from London University, and her principal field of study is southern Somalia. She was asked, having interviewed the claimant, whether in her opinion she belonged to the Bajuni people and was a Somali national. She reached the conclusion that she was. She interviewed the claimant with the aid of an interpreter. The language of the interview was Kibajuni. The reasons for the conclusion were set out in her report, namely that she spoke Kibajuni. This was attested by an interpreter who Dr Luling knew and believed to be reliable, and she regarded that as the most important criterion for the conclusion that she was a Bajuni. She supported that by outlining the knowledge the claimant had of local dances, knowledge of the names of local schools, of local cinemas and also of local geography. The claimant referred to a mosque called Ma'alim Abdullahi in Majengo-Medina, of which the expert said she had heard.
8. The expert carefully distinguished between reaching a conclusion that the claimant was a Bajuni and a conclusion that she was a Bajuni from Somalia since, as the expert accepted, she could be a Bajuni from Kenya, but it was her knowledge of the geography, the mosque and the schools that led the expert to the conclusion, quite apart from her knowledge of the language, that she was not only a Bajuni but that she came from Somalia.
9. Prior to the adjudication, the adjudicator directed that the claimant's solicitors serve an expert report within seven days on the respondent and the court. This was done, and on 15th April, by fax, solicitors instructed by the claimant wrote:

"Please find enclosed herewith a copy of the expert report. Kindly advise us if you require the expert to attend the hearing."

There was no response whatsoever. Accordingly, with hindsight, a decision no doubt the solicitors regretted, the expert was not called before the adjudicator.

10. The adjudicator concluded that the claimant was not a Bajuni and was not from Somalia. The reasons he gave were firstly relating to the language. He cited at page 7 of his decision the Joint British Danish and Dutch report which concluded that a Bajuni may only have very limited knowledge of Somali but would speak Kibanjuni, a dialect related to Swahili. The adjudicator continued at paragraph 5.1.1 that:

"It is incredible that the appellant does not speak the language that the elders, of the clan she claims to be a member, say that most Bajuni should speak."

And continues later:

"She claims to have spent some eighteen years in Kismayo and to confess to speaking 'very little' of her native tongue is incredible."

He goes on:

"I have been presented with a report prepared by one Dr Virginia Luling. The author claims she conducted the interview in Kibajuni language. She forms the opinion because the interpreter she employed is said to have attested to that. I would have very much liked to have heard from that interpreter. The appellant in the asylum interview conducted on the 20th February 2001 said she spoke very little Somali. Yet by the 20th March 2003, the date of the Luling interview, the appellant spoke sufficient Kibajuni to conduct the entire interview. If that is so, why did not the appellant conduct the hearing [in] Kibajuni. The appellant told me she could have done had her solicitors requested such an interpreter for the hearing. This is rather an unsatisfactory [sic]. The appellant knew from the Letter of Refusal that her inability to speak the language is very much in issue. She should have instructed her solicitors to request a Somali speaking interpreter for the hearing."

11. In that passage it is quite apparent to me -- and Miss Chan, who has argued this case with great skill, fortitude and moderation for the Home Office, does not contend to the contrary -- that the adjudicator completely confused the evidence and the conclusions in relation to the important issue of language. There was no dispute but that the language which in fact this claimant could speak was highly diagnostic of her ethnicity, namely whether she was a Bajuni.
12. The adjudicator asserts that the claimant does not speak the language that the elders say that most Bajunis should speak, and in support of that conclusion cites her confession to speaking very little of her native tongue, and he describes that as incredible. That was an error that went to the root of the adjudicator's conclusion as to whether she was a Bajuni or not. It was wholly wrong. The appellant asserted that she spoke Kibajuni, a language related to Swahili; that is not the same as Somali. The language which the claimant confessed (to use the adjudicator's words) to speaking very little of was not Swahili, was not Kibajuni, but was Somali. There was, therefore, no evidence and no basis for the sentence I have cited which the adjudicator relied upon to conclude that she spoke very little of her native tongue. She did not confess to speaking very little of her native tongue, namely Kibajuni.
13. That that was an error is confirmed at the top of the next page when the adjudicator said she spoke very little Somali and the next word "yet", which is meaningless in the context of Kibajuni. Kibajuni is not the same as Somali, as I have said, and there was therefore no conflict between her saying in interview she spoke very little Somali and yet speaking sufficient Kibajuni to conduct the entire interview with Dr Luling. It is plain the adjudicator thought there was such a conflict in the use of the emphatic word "yet".
14. It is perfectly true that the Secretary of State understood the issue in the decision letter and relied upon the fact that the claimant, although a Bajuni coming from Somalia, and although apparently in a refugee camp where there were other Bajunis, nevertheless said in her interview that she used to speak Bajuni but it was ten years since she had done so (see the answer to question 29). But if an appeal on questions of fact is to have any meaning at all, it is not enough for the Home Office to say, "The Secretary of State got it right even if the adjudicator got it wrong". On such an important issue it, surely, is necessary for the adjudicator to be clear in his own mind upon the basis upon which he is reaching such a fundamental conclusion that an applicant does not come from where she says she came from. In other words, on a crucial issue the adjudicator was completely wrong.
15. The second reason given by the adjudicator was that Dr Luling's conclusion that not only was the claimant a Bajuni but came from Somalia was not to be given any significant weight. He sets that out in paragraph 5.1.II. He says that it would have been helpful if a map of Kismayo and its surrounding area had been produced so that he could form his own views, no doubt to consider the accuracy of Dr Luling's report. Then he cites the passage I have already referred to about the claimant remembering a mosque called Ma'alim Abdullahi in Majengo-Medina which the expert had heard of, and says this:

"This is unacceptable. The author did not attend the hearing to be cross-examined. If she had produced certified maps or other authoritative sources in support of her conclusions I would have been prepared to give the report weight. Without more I am not prepared to give the report the weight the appellant wishes me."

16. I am wholly unclear as to why it is that the adjudicator was not prepared to accept what the expert said about the geography. Of course, it might have been information, as the adjudicator later said, that the claimant acquired since the interview and since the Secretary of State's reasons for refusal. She might have acquired some spurious information about the geography to make good a false claim. That is not what the adjudicator says in that passage. He is apparently not prepared to give weight to the expert saying that there is a mosque with that name in Majengo-Medina which she had heard of. One of the bases upon which he was not prepared to do so is that she was not cross-examined; another basis is that he did not have any maps in support.
17. In relation to the cross-examination, I fully accept the general proposition advanced by Miss Chan that it is up to a claimant to call the evidence before the adjudicator on which a claimant wishes to rely, and the claimant has no legitimate source of complaint if, on a proper reasoned basis, the report is rejected notwithstanding that it has not been cross-examined to. If any authority is needed for so self-evident a proposition it can be found in the case of R v Secretary of State for the Home Department ex parte Khanafer [1996] Imm AR 212, particularly at page 214. Nothing that I say is meant in any way to undermine so plain and sensible a proposition. But that was not the case here. As I have said, the claimant's solicitors specifically asked the Home Office, to whom they had given time to look at the report, whether they wanted the expert to attend and the Home Office had said absolutely nothing, not even a telephone call or message saying "We do not know, we have not had time to consider it, you must take your own course", ... nothing. In those circumstances it seems to me very harsh for one of the grounds for disputing a question of geography was that the expert was not there to be cross-examined. At the very least the adjudicator might have paused for a moment and said "I am not happy about the evidence about the geography, can you find a map within the next half hour, get a taxi to the library at SOAS and see whether this place exists or, better still, can you find the expert and get her here within half an hour". Nothing of the sort. I am not saying as a general rule that ought to happen, it is a matter for the adjudicator, but in this case, having regard to the specific request of the Home Office, it seems to me very harsh not to give weight to a report because the expert was not there to be cross-examined.
18. But even worse, as it seems to me, is for the adjudicator to decline to give weight to the conclusion merely because the adjudicator has not seen a map. I confess to not understanding that point unless it be a disguised way of saying "I am not prepared to believe what Dr Luling says to me without a map". What basis did he have for saying that he was not prepared to believe so obviously an objective fact? Either there is a place called Ma'alim Abdullahi or there is not. It probably can be found on some website. But none of that apparently was raised at the time, yet it forms a basis for the adjudicator saying that he was not prepared to give that matter any weight.
19. The third basis is that the adjudicator says that the claimant could have learnt this knowledge about what a Bajuni would know from Somalia in the two years she has been in the United Kingdom. He was entitled to say she could have learnt about some of the geography, but he does not grapple with any of the detail given by the expert which reveals not only that she did have knowledge of the geography, but also of the names of schools, the colour of the uniforms, the names of the cinemas and also of local dances. In my judgment, the rejection of that part of the conclusions of the expert seems to me not to deal with the detail that supported the conclusion that the expert gave.
20. Looking at the matter in the round, and bearing in mind the great importance of not picking out little bits of an adjudication and finding fault with them, but looking at it as a whole, I am quite unable to conclude that the factual basis upon which the claim was made which led to the Secretary of State's refusal was conducted with anxious scrutiny or provides any reasoned or sound basis for rejecting the expert's conclusions. In my judgment, the errors I have identified demonstrate to my satisfaction that there were serious and crucial flaws in the adjudicator's reasoning. It seems to me that his rejection of the claim on the basis of absence of knowledge of the appropriate language, Kibajuni, was confused, wrong and unjustified on the evidence. Secondly, the basis upon which he rejected the report of Dr Luling, which he was entitled to reject, was not a basis in reasons which stacked up. The reasoning was not, in my judgment, a proper basis for rejecting that report, even though he was entitled to reject it.
21. The errors to which I have referred seem to me to have been compounded when it comes to the alternative basis upon which the adjudicator rejected this claim, namely that it was safe for the claimant to return. He refers to the fact that the claimant had been living in Kenya and asserts that there is no refugee convention reason for leaving Kenya. That is a conclusion of fact, but there is no reasoning given, and there should have been some -- it need only have been a sentence or two -- to refer to the evidence that was before the adjudicator as to life in the refugee camp in Kenya which demonstrated a case that Kenya was not able to give protection to Somali refugees which was set out at page 42 of my bundle. No basis for dismissing that is given, but the error is compounded by a reference that remains wholly unexplained to Ethiopia. Twice at the top of page 11 of the decision the adjudicator refers to Ethiopia. Miss Chan, with her customary skill and tact, refers to that as a mere typographical error. Quite what keys you press on your computer to get Ethiopia for Kenya remains something of a mystery to me, and it was not a mystery dispelled by Miss Chan's advocacy.
22. It smacks to me of an error, whether of accident or carelessness I need not find, but it does not give one any great confidence in the alternative basis upon which this claim was rejected. Indeed, I was told at the bar by Miss Wood that this was not a basis ever canvassed. This does not wholly surprise me since it was not a basis for the Secretary of State's refusal. The Secretary of State said she is not a Bajuni from Somalia and certified the claim accordingly, but it is open to an adjudicator to reject that reason and find that it was safe to return, so long as an applicant is put on proper notice as to that.
23. That, I emphasise, is not the basis upon which I am prepared to allow this application for judicial review. If claimants wish to assert that a point was not taken or properly canvassed before an adjudicator, there must be some evidence of that. The representative from the Home Office is not there. It is quite impossible for the Treasury Solicitor or Treasury counsel to deal with the point when they were not there. It is important, therefore, that the point should not depend upon the Bar giving evidence themselves, in an application such as this, that the point was not taken. So I do not decide the case on that basis. I emphasise I am not disputing what Miss Wood says or disbelieving her, it is simply very important that the matter is regularised as a matter of evidence.
24. It is not that basis upon which I reject the alternative claim. It is this. In concluding that it would be safe to return, the adjudicator refers to the House of Lords case in Adan and the CIPU report dated October 2002, which refers to occasions of banditry, which was how the adjudicator referred to the incident upon which the claimant relied, and refers to paragraph 5.2. I have been shown today that CIPU report, which in fact specifically refers to the situation of Bajunis, stating in that report that persecution solely on the basis of clan membership or ethnicity is now very unlikely (see paragraph 5.50) and in the immediately preceding paragraph specifically deals with Bajunis. Since the adjudicator was dealing with this aspect of the case on the alternate basis that the claimant was a Bajuni, I find it startling and surprising that he does not focus on those later paragraphs at all.
25. The matter becomes more mysterious when I was shown today Home Office Operational Guidance on Somalia October 2002, which states that members of the minority Bajuni groups are likely to be able to establish a need for international protection (paragraph 2 of that document). That was a document that has been used by the IAT on earlier occasions.
26. It seems to me wholly dangerous in a decision which I have criticised to say that, despite those errors, there is no reason for granting relief because this claim is bound to fail on the alternative ground advanced by the adjudicator, namely even as a Bajuni from Somalia it is safe for her to return now. That may well be so, but the conflict between the objective evidence does not appear to have been considered by the adjudicator. This may not have been his fault. It may well be that the operational guidance was not before him, and that was the fault of the claimant. If I am asked to say that the result would inevitably be the same, or even likely to have been the same, I am quite unable to do so. There seemed to me difficulties anyway in the second part of that adjudicator's decision, for the reasons I have given, in the reference to Ethiopia and the lack of reasoning as to the conclusions in relation to Kenya and the failure to cite the most relevant part of the CIPU report. I am quite unable to say that the decision would be the same were I to send the matter back to a different adjudicator.
27. Having regard to the conflict in the objective evidence I am now shown and the inadequacies of that adjudicator's conclusion in the decision that I have referred to, in my judgment it is not possible to say that the conclusion would be the same.
28. In those circumstances I shall allow this application. In my judgment it was fatally flawed in its reasoning, for which there was no basis in the evidence in relation to the language, in relation to the approach to the expert, and on the alternative basis. For those reasons I shall allow this application for judicial review, quash the decision of the adjudicator and order, unless the Secretary of State changes his decision, that the matter be reconsidered before a different adjudicator.
29. MISS WOOD: My Lord, in light of your finding, the claimant is publicly funded, so there is an application for costs as a result of this.
30. MR JUSTICE MOSES: What do you say, Miss Chan?
31. MISS CHAN: My Lord, I do not think I can resist that application.
32. MR JUSTICE MOSES: I shall say the application is allowed and the claimant should have her costs. Anything else? You are not asking for permission to appeal?
33. MISS CHAN: No.
34. MR JUSTICE MOSES: Thank you very much.