United Kingdom Asylum and Immigration Tribunal

MS Somalia [2002] UKIAT 06698

HX 14176-02

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 27 November 2002

Date Determination notified: 23 February 2003

Before
Mr P R Moulden (Chairman) Mr M. Shrimpton Mr A. F. Sheward
Between

 

MS	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS
1. The Appellant is a citizen of Somalia. She has been given leave to appeal the determination of an Adjudicator (Mr M. A. Khan) dismissing her appeal against the Respondent's decision to give directions for her removal from the United Kingdom and to refuse asylum.

2. Mr P Anim-Addo of Council instructed by Develmi & Co, Solicitors, appeared for the Appellant. Mr C. Buckley, a Home Office Presenting Officer, represented the Respondent.

3. The Appellant arrived in the United Kingdom on about 16 July 2001. She claimed asylum on 20 July. The notice containing the decision against which she appeals is dated 31 October 2001. The Adjudicator heard the appeal on 13 May 2002 and leave to appeal was granted on 17 September 2002.

4. The Appellant claimed to fear persecution and infringement of her human rights in Somalia because of her membership of a minority sub clan. She said that she and her family were attacked, beaten up, tortured and their belongings destroyed or looted. The Adjudicator found that she was not a credible witness. Whilst accepting that she was a citizen of Somalia, he did not accept that she belonged to a minority clan or that she and her family had suffered as claimed. He concluded that she had not established a well-founded fear of persecution for a Convention reason or that her human rights were likely to be infringed. The first of the two grounds of appeal does no more than repeat the claim that the Appellant has a well-founded fear of persecution in Somalia. However, at the hearing Mr Anim-Addo pursued only the second grounds of appeal under Article 8.

5. In relation to Article 8 the Adjudicator found that the Appellant had spent only a short time with her siblings in the United Kingdom. She had spent most of her life with first her parents and then her uncle and his family in Somalia. After her siblings left Somalia she did not know where they were and they did little to find out where she was or what was happening to her. The Appellant has two brothers in the United Kingdom who are British citizens and a sister who has indefinite leave to remain. She is living with her younger brother. The Adjudicator found that the period spent with her siblings in the United Kingdom was very short and that she had not established a family life with them. Article 8 was not engaged and would not be breached by her removal to Somalia.

6. We have no documents from the Appellant's representatives although, during the hearing, we allowed Mr Anim-Addo to submit a copy of page 8.57 of the fifth edition of Macdonald. The Respondent submitted copies of two decisions of the European Commission of Human Rights, S and S v United Kingdom delivered on 10 December 1984 and Advic v United Kingdom delivered on 6 September 1995.

7. Both representatives accepted that we could repair any defects in the Adjudicator's determination and it was not necessary to remit to him or another Adjudicator.

8. Mr Anim-Addo submitted that the Appellant did not have a family life in Somalia. She had a lifelong relationship with her siblings and it was not likely that she could establish a family life on her own or with them in Somalia. He submitted that she was a member of a minority clan and persisted in the submission after we pointed out that the Adjudicator had concluded otherwise. He accepted that the Appellant and her siblings were likely to belong to the same clan or sub clan but argued that the Adjudicator should have made specific findings with regard to her siblings, not just the Appellant.

9. We asked Mr Anim-Addo if he wished to address us on proportionality. In doing so he did no more than rely on the judgment of the Court of Appeal in Mahmood and said that it would be extreme to remove the Appellant.

10. Mr Buckley took us to Advic and submitted that on this authority the Appellant did not have a family life with her siblings in the United Kingdom. She had lived in the United Kingdom for a very short period. At the date of the Respondent's decision she had been in the United Kingdom for 2 or 3 months. There had been no contact between her and her siblings after they left Somalia. There was no evidence of dependency beyond normal ties between siblings. He submitted that Article 8 was not engaged. There was no evidence of how her siblings had achieved British citizenship or indefinite leave to remain. There was no evidence of insurmountable obstacles to any of them returning to Somalia. He submitted that there would be no interference with family life but, if we were against him, on all the evidence it would, in the interests of immigration control, be proportionate to return her to Somalia.

11. In reply Mr Anim-Addo said that there were insurmountable obstacle to her return but did not specify what they were. Her siblings could not go and live with her in Somalia.

12. The passage in McDonald's relied on by Mr Anim-Addo states, "Generally, relationships between adult siblings or adult children and their parents will not fall within the scope of Article 8, but in each case it is a question of fact whether there exists ties strong enough to constitute family life within the meaning of the Article. Whether a relationship amounts to "family life" depends on the substance as much as form; so informal heterosexual relationships of sufficient substance and stability have been classified as "family life", although stable homosexual relationships have not."

13. In Advic the Commission said, "Nevertheless, in accordance with the Commission's case law, the exclusion of a person from the country in which his close relatives reside may raise an issue under Article 8 of the Convention. However, in examining cases of this nature the Commission's first task is to consider whether a sufficient link exists between the relatives concerned to give rise to the protection of the Article of the Convention. Although this will depend on the circumstances of each particular case, the Commission has already considered that the protection of Article 8 did not cover links between adult brothers who had been living apart for a long period of time and who were not dependent on each other. Moreover, the relationship between a parents and an adult child would not necessarily acquired the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties".

14. In the circumstances we find that the Adjudicator was right to conclude that the Appellant had not established a family life in the United Kingdom with her siblings. They had lived apart, she in Somalia, they in the United Kingdom, for a considerable time, without any contact. After her arrival in the United Kingdom and at the date of the decision she had resumed contact and lived with one of her brothers for only some three months. There is no evidence of any greater dependency. Apart from any inference which may arise purely from the fact that she is living with her brother, there is no evidence of dependency involving more than the normal emotional ties. On the evidence before him and the same evidence before us the Adjudicator was entitled to conclude that the Appellant had not established a family life with her siblings in the United Kingdom.

15. If we were wrong in this then to return the Appellant would be an interference with family life. It would be in accordance with the law. We find that it would be proportionate to a legitimate aim. We have no evidence that the Appellant's siblings could not travel with her to Somalia or visit her there. The facts, which we accept, are that the two brothers are British citizens and her sister has indefinite leave to remain. They have not established how they achieved such status, that they are refugees or, even if they were refugees, that there is still some reason why they cannot go to Somalia. Mr Anim-Addo accepts that the Appellant and her siblings are likely to belong to the same clan and sub clan. In circumstances where the Adjudicator found that the Appellant did not belong to a persecuted minority clan there was no need for him to make separate findings about her siblings. On all the evidence, had it been necessary for us to do so, we would have concluded that it would be proportionate to return the Appellant to Somalia.

16. For these reasons we dismissed this appeal.

    …………………………………….

    P. R. Moulden

    Vice President