United Kingdom Asylum and Immigration Tribunal

OT (Somalia) [2002] UKIAT 01TH01347 (15 January 2002)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 05/12/2001

Date Determination notified: 15 January 2002

Before
Mr P R Moulden (Chair) Lady Bonham Carter Mr C A N Edinboro
Between

 

OT	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

Representation: For the appellant: Mr E Fripp of Counsel instructed by Noden & Company Solicitors For the Respondent: Mr N Banks, Home Office Presenting Officer DETERMINATION AND REASONS
1. The appellant is a citizen of Somalia who has been given leave to appeal the determination of an adjudicator (Miss A L Sawetz) dismissing his appeal against the respondent's decision to give directions for his removal from the United Kingdom and to refuse him asylum.
2. The appellant arrived in the United Kingdom and applied for asylum on 10 January 2001. The date of the respondent's decision is 9 March 2001. The adjudicator heard the appeal on 1 August 2001 and leave to appeal was granted on 22 October 2001.
3. Initially the respondent doubted that the appellant was a citizen of Somalia. However, the adjudicator appears to have accepted this and at the hearing before us Mr Banks conceded that the appellant was a citizen of Somalia.
4. The appellant claims to fear persecution in Somalia from other clans and the ruling militia, the USC, because he belongs to the ASHRAF Clan, which is a subgroup of the Benadire Clan. He said that his father was killed in 1991 and his brother in 1997. He was taken by the USC and forced to work for them. He was released in February 2000 after which he fled to Ethiopia and then to the United Kingdom.
5. The adjudicator found that the appellant was not a credible witness. She gave a long list of reasons for this conclusion. However, she did not make any clear finding as to whether he was a member of the ASHRAF Clan or whether the ASHRAF Clan was a subgroup of the Benadire. On the country information before her the adjudicator found there was no evidence to show that the ASHRAF Clan was subjected to persecution in Somalia. However, she did accept that the Benadire suffered persecution, "as do many of the Sub Clans".
6. She concluded that the appellant had not established either a well founded fear of persecution for a Convention reason or that his Human Rights would be infringed.
7. It is clear that we have received far better and more relevant and comprehensive country information than that before the adjudicator. This includes, at page 43, the Home Office Operational Guidance Note for Somalia. A passage in paragraph 2 on page 46 states that members of the minority Bravanese, Benadire and Bajuna groups should usually be granted asylum. They have been assessed as persecuted minorities by the UNHCR and their situation in Somalia remains uncertain. There are also a number of reports which show that the ASHRAF are a sub clan of the Benadire. In these circumstances it is not surprising that Mr Banks conceded that if the appellant established that he was an ASHRAF his claim would succeed. However, Mr Banks was not prepared to concede that the appellant was an ASHRAF. Mr Fripp accepted that the determination did not contain a clear finding as to whether the appellant was or was not an ASHRAF. He also accepted that, not having heard evidence on the point from the appellant, the Tribunal was not in a position to substitute its own judgment for that of the adjudicator.
8. In the circumstances both representatives asked us to allow the appeal to the extent of remitting it for further hearing. Mr Fripp argued for a further hearing before another adjudicator and Mr Banks that it should be before the same adjudicator.
9. We find that it would be in the interests of justice and would save time and expense to remit the case to another adjudicator for a fresh hearing.
10. We allow the appeal to the extent that it is remitted for hearing afresh before an adjudicator other than Miss A L Sawetz.

Mr P R Moulden Vice President

© Crown Copyright