United Kingdom Asylum and Immigration Tribunal

APPEAL No. MH (Deliberate delay: effect on credibility) Somalia [2004] UKIAT 00199

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 5 July 2004

Date Determination notified: 20 July 2004

Before
Mr JG Freeman (vice-president) Ms JA Endersby Mrs W Jordan
Between

 

MH	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: Mr C Onwuegbu, solicitor, Develmi & Co For the respondent: Mr D W Saville
DETERMINATION AND REASONS

This is an appeal by a citizen of Somalia from the decision of an adjudicator, Mr G F Denson sitting at Taylor House on 20 November 2003. Permission was given in the following terms:

I do not consider that the Adjudicator erred in refusing to adjourn. There had already been two previous adjournments, the first of these because the claimant was ill. On 6 November 2003, the claimant failed to produce evidence to confirm her claim to be unable to attend due to illness.

However, it is arguable that at paragraph 21 the Adjudicator wrongly deduced that the absence of the claimant (and her witnesses) was in itself a reason to conclude that her account was untrue.

1. At paragraph 23 of the adjudicator's decision, he agreed in general terms with the conclusions of the refusal letter; but his decision to reject the claimant's case turns on what he said at paragraph 21:

I am at a disadvantage as I have not been able to hear direct evidence from the appellant nor the witnesses who purportedly support her contentions that she is from a minority tribe within Somalia. I am not able to satisfy myself as to her credibility nor whether she rebutted the statements contained in the Secretary of State's refusal letter. It is therefore very difficult to come to the conclusion that the appellant is a person whose word can be relied upon. The appellant's story has not been tested under cross-examination.

2. If it had been a question of the claimant's simply failing to appear on one occasion, then a negative credibility finding of that kind would certainly not have been justified. However, the history of this case went further than that, and the adjudicator quite rightly sets it out in some detail at paragraphs 8 to 11, having first noted that the appellant's solicitors had returned a reply to directions, on the strength of which the substantive hearing was set for 12 August 2003.

On 12 August 2003 neither the appellant, her representatives nor the two other witnesses attended the hearing. A phone call was received from the representatives indicating the appellant was ill and a letter would be faxed to the Court confirming this. A letter was duly faxed stating the appellant would not be attending the hearing as her representatives received a telephone call from her friend yesterday afternoon that she was in hospital. They further went on to state that they aimed to provide medical evidence within the next seven days. The appellant's appeal was duly adjourned until 9 October 2003.

On 7 October 2003 the appellant's solicitors supplied a copy of the relevant appeal bundle (this having not been supplied in readiness for the earlier hearing of 12 August 2003 despite directions to do so). Such bundle contained witness statements in relation to two further witnesses the appellant wished to call. An application by the respondent for an adjournment was made in order to check the veracity of the two witness statements against files held by the respondent and the matter was adjourned to 6 November 2003.

On 6 November 2003 the appellant again failed to attend due to illness. A request for an adjournment was made on the basis that a medical certificate would be produced within seven days however, to date no medical certificate has been produced by or on behalf of the appellant. The matter was then adjourned to the hearing of today namely 20 November 2003.

At the hearing today the appellant again failed to appear, nor did her witnesses. No medical evidence whatsoever was produced and the relevant request for an adjournment as indicated above was refused.

3. It will be noted that, although one of the three previous adjournments in this case was at the request of the Home Office, that request was caused by the late filing, contrary to directions, of the appellant's bundle including witness statements. The appellant's explanations, through Mr Onwuegbu, for these three adjournments, and the failures which each of them involved on her part, and that of her solicitors were as follows. So far as the failure to provide a medical certificate within seven days, as undertaken by the solicitors on 12 August, was concerned, the appellant had never provided such a certificate to her solicitors.
4. So far as the failure to file witness statements as directed (originally with the notice of hearing sent out on 5 June) for the hearing of 12 August was concerned, this was said to have been caused by the appellant being in hospital. We asked Mr Onwuegbu if there were any medical evidence of that stay in hospital, and were told there was none.
5. So far as the failure to provide medical evidence of the appellant's illness on 6 November is concerned, (again, as undertaken, within seven days), once again such evidence had not been provided by the appellant to her solicitors. It was, of course, the solicitors' duty, having given their own undertaking on two occasions to produce medical evidence justifying the adjournment, at the very least to give some explanation to the adjudicator at the hearing why that could not have been done.
6. However, as it turns out, the explanation, such as it is, which we have now been given shows that this appellant was personally responsible for what the adjudicator was well entitled to regard as a series of quite unexplained and inexcusable attempts, successful until the last occasion before him, to delay the process of justice in this case. In our view, the adjudicator was well justified in making the negative credibility finding he did at paragraph 21 on that basis. Adjudicators may in future wish to consider whether they should grant adjournments for medical reasons without seeing medical evidence, by fax if necessary.
7. No basis has been put forward on which the appeal could succeed independently of the claimant's credibility; except, it is said, for her tribal origins in the Bandhabow clan of the Mogadishu Benadiri or Reer Hamar. Those origins were not specifically accepted by the Home Office; so that point too depends on the claimant's credibility. It is however suggested that the adjudicator should have taken account of the background evidence in rejecting that part of the case as well as her individual history.
8. The relevant points were taken in the refusal letter at paragraphs 7 and 10. At paragraph 7, the Home Office refused to accept that the claimant's brother-in-law could have sold his house in Mogadishu as he claimed. At paragraph 10, they refused to accept that the claimant would have stayed as long as she did in Mogadishu. Those points were accepted by the adjudicator, but have been challenged by Mr Onwuegbu, with reference to the background evidence contained in the Minority Groups Report (compiled by the Joint British, Danish and Netherlands Fact Finding Mission of September 2000).
9. The relevant evidence appears at paragraph 7.4, where an estimate is given that over 70% of the Reer Hamar in Mogadishu had fled Somalia during the civil war. Elders are quoted as saying that some were left in Mogadishu; but they could not say how many. However, looking more closely at the refusal letter, paragraph 10 does not so much challenge the fact that the appellant as a Reer Hamar should still have been in Mogadishu at the end of her stay in Somalia; but why, in the light of her individual history of serious persecution of her personally, she should have remained there.
10. Paragraph 7 challenges not only how her brother-in-law had been able to stay as long as he did, but how he could actually have managed to sell his house. The appellant's explanation on that point (there is none on the first) comes in paragraph 5 of her statement of 7 October 2003 where she says, "Other people from larger clans conducted the sale for him". That may amount to slightly more than what the adjudicator describes at paragraph 23 as a bland denial of the Home Office case; but it remains the case that it is not, in the adjudicator's words, "controverted by … any substantive evidence to the contrary". There is evidence that some Benadiri remained in Mogadishu (certainly less than 30% from the evidence reviewed at 10; but there is nothing there to show how many); but there is nothing to show they were able to find a market for their houses, with or without the help of larger clans; or to explain why this claimant, on her history, was able to leave in a manner which permitted such arrangements to be made.
11. The adjudicator's conclusion, as we have already said, was well justified on the history of the case. Although he might perhaps have dealt with that case itself in slightly more detail, the way in which he did so is not shaken by anything to which we have been referred in the background evidence, and the appeal is dismissed.

John Freeman

(approved for electronic distribution)