United Kingdom Asylum and Immigration Tribunal

AE (Bimaal clan - sufficiency of protection) Somalia [2004] UKIAT 00281

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 20 September 2004

Date Determination notified: 5 October 2004

Before
Mr Andrew Jordan (Vice President) Mr J. Perkins (Vice President) Mrs M.L. Roe
Between

 

AE	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr P. Douglass, Counsel instructed by Pearson & Winston, Solicitors For the Respondent: Ms T. Hart, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Somalia who appeals against the determination of an adjudicator, Mr D. M. Wynn-Simpson, promulgated on 7 October 2003 in which he dismissed the appellant's appeal against the decision of the Secretary of State to refuse both her asylum and human rights claims.
2. The appellant was born on 10 December 1974. She is 29 years old. She arrived in United Kingdom on a date that has proved to be incapable of verifying and claimed asylum on 23 December 2002. The Secretary of State refused the application on 18 February 2003 and gave directions for the appellant's removal to Somalia. This gave rise to a right of appeal under section 69 (5) of the Immigration and Asylum Act 1999. In due course, the appellant appealed.
3. In a statement prepared by the appellant and forming part of her application, she stated that she was from the Bimaal clan. The spelling of this clan varies from source to source. It is also referred to as "Biyomal", "Biyamal", "Bimal", "Biimaal", "Biyamaal". For the purposes of this determination, it is not necessary to specify the sub-clan. The appellant claimed that it was a minority clan, who do not have warlords and militia to protect them and live mainly in the Lower Shabelle area. Although she was born in Marka, her family moved to Mogadishu where she lived in the Wardhigley area of the town. The family owned a substantial property consisting of residential accommodation above and seven shops beneath, including a pharmacy and a restaurant.
4. It was the appellant's case that, after the commencement of the civil war in 1998, the Hawiye militia took control of the property, permitting the family to occupy only two rooms that requiring the appellant's husband to work in a pharmacy whilst her father and brother worked in the restaurant. In 1996, she stated that her husband was forced to join the militia but eventually made his way to Kenya where he divorced the appellant. She lost contact with him.
5. On 20 September 2002, the claimant asserted that an incident took place in which militia murdered her father and brother. Towards the end of September, the remnant of the family moved to a relative of the appellant's mother, who lived in Medina, another part of Mogadishu, where in November 2002, the claimant married for a second time. Shortly thereafter, arrangements were made for the appellant to leave Somalia. She left her children with her mother.
6. At the hearing before the adjudicator, it was accepted by the Secretary of State that the appellant was a member of the Bimaal clan. In paragraph 9 of the determination, the adjudicator set out in brief form what we have set out above. In paragraph 10, the adjudicator stated:

"It will be seen from these rather brief findings of fact that I have difficulty in accepting, even at the appropriate low standard of proof, what the appellant has said about her family's detention in the house for 12 years and the circumstances in which he was able to escape, leading her children with her mother. The appellant's answers in cross-examination did not satisfy me that she was telling me the truth, and that together with the issues raised in the refusal letter which led the respondent to disbelieve the appellant, lead me to the conclusion that her claim is not credible."

7. Although the adjudicator refers to making brief findings of fact, it is apparent that he made no such findings. In rejecting her claim, the adjudicator gave no reasons and it is common ground that his determination is flawed as a result. The adjudicator did not set out what answers in cross-examination failed to satisfy him or why. Nor did the adjudicator identified the specific matters in the refusal letter with which he agreed and which caused him to draw adverse inferences.
8. The adjudicator, however, was bound by the Secretary of State's concession that the appellant was a member of the Bimaal clan. The adjudicator was referred to the decision of the Tribunal in Iimi [2002] UKIAT 05558 (Mr A. R. Mackey, Vice President) and considered the single sentence in the Report on Minority Groups to the effect that the Bimaal had the benefit of protection from the Dir clan. The adjudicator reasoned:

"The other issue that I have to address is that related to the [Bimaal] clan, and in this respect I have regard both to the Tribunal determination in Iimi and to the joint report and schedule of clan is produced by the respondent which have both shown the [Bimaal] is being a sub clan of the Dir. It is significant that the appellant and her family have been able to live in worked in the Mogadishu area for some 12 years whilst it was under the control of the Hawiye militia. The objective material against suggests that members of the Dir clan and presumably the [Bimall] sub clan are not targeted specifically by the home we a militia although there may of course be at risk, as of all members of the population, have been caught out in fighting between rival militias. It is that this reason that I do not accept that the appellant as a member of the [Bimaal] sub clan would be at any greater risk if returned to Somalia than that faced at the population as a whole."

9. On the basis of this conclusion, the adjudicator dismissed the appeal.
10. The starting-point for our consideration is the Joint British, Danish and Dutch Fact Finding Mission to Nairobi, Kenya 17-24 September 2000 in which there is a reference to the Bimaal clan forming a sub-clan of the Dir. In paragraph 17, it is said:

"Wayne Long [chief security officer UNDP Somalia] emphasised that minorities can rarely challenge the dominant Somalia clan militias on a military basis, as they have no military capability of their own. One exception to this is the Bimaal, who he described as a neo-Somali group, part of the Dir clan family but of mixed Arab ancestry, who have no organised militia but are able to assemble small armed groups to challenge Haber Gedir dominance."

11. At this point, it is appropriate to make two points. First, Mr Long as the chief security officer of the United Nations Development Programme would be expected to have a considerable amount of first-hand experience in Somalia but is not a country expert in the academic sense. Second, the passage that we have set out above does not establish that the Bimaal are able to organise militia of their own. Instead, it suggests the challenge that they offer to the domination of the Haber Gedir militia is limited to the activity of small armed groups.
12. This passage in the Fact Finding Mission report of September 2000 was considered by the Tribunal in Iimi. In paragraph 19 of the determination, the Tribunal stated:

".. The additional objective information indicates that the[Bimaal] minority tribe or sub-clan are group who are based in Mogadishu and southern parts of Somalia. They are stated to have some defensive capability in the form of armed groups. However the objective information does not state where or how protection from those groups could be accessed. It does however state that the protection is required from one of the larger clan is of the Haber Gedir. This sub-clan is led by General Aideed and appears to control most of southern Mogadishu."

The Tribunal allowed the appellant's appeal, having found that there was no adequacy of protection.

13. Although in the instant appeal, the adjudicator relied upon the determination in Iimi to support his conclusion that the appellant was not at risk, it is not altogether clear how he reached that conclusion, given that the Tribunal allowed the appeal in Iimi because the appellant was a Bimaal. Furthermore, whilst it is apparent that the Fact Finding Mission recorded Mr Long's information that the Bimaal were able to assemble small armed groups, the adjudicator appears to have treated that as providing an adequacy of protection without considering what practical assistance such small armed groups would afford the Bimaal community.
14. For the purposes of this appeal, we were referred to the Operation all Guidance Notes on Somalia, version 6, of May 2004. At paragraph 2.1.4.5, the Middle/Lower Shabelle area was described in these terms:

"Tensions between competing faction led by Musa Sude and Mohammed Dhere led to fierce clashes around Jowhar in July 2003, although calm was restored by early September 2003. Overall Jowhar stabilised through the course of 2003. Though the Lower Shabelle has no single authority it is fairly quiet apart from a few land disputes. The new strong man Indha-Adde, who belongs to the Haber Gedir..has taken over control of Merka and the uppermost part of the region."

15. It seems to us that this suggests that control of this area rests in the hands of the Haber Gedir.
16. After the adjudicator reached his determination, the appellant belatedly sought expert advice. In a report dated 30 January 2004, Dr Virginia Luling made a number of significant points about the protection needs of the Bimaal. Although she accepted the Bimaal are a section of the Dir clan-family or group of clans, most of the Dir live in the extreme north of Somalia territory, in Somaliland and Djibouti. In contrast, the Bimaal are separated from them, and live in the south. Most Bimaal live in the Lower Shabelle region in and around the city of Marka, and others around Jamame in the Middle Jubba and Lower Jubba regions. She went on to say:

"The Bimaal of the south definitely do not see themselves as belonging to the same clan as the other Dir (the Iise and Gadabursi) of the north. They have been separated from them for at least two centuries, they speak a different Dir, and so far as I know that are no effective tights between them. The connection is a theoretical one, known to elders but not have much practical relevance. I say this from my general knowledge of southern Somali society, and from conversations that I had with Bimaal in Marka in 1996."

17. She concluded by saying that she had never have heard of any help given by the Dir to the Bimaal and that the Iise and Gadabursi have quite different interests in the politics of Djibouti and Somaliland. On page 2 of her first report, Dr Luling stated that the Bimaal do not have a clan militia. As a result the Bimaal are in a subordinate position under the control of the Hawiye and Darod groups.
18. For the purposes of the hearing today, Dr Luling also provided a us with an additional report. It is regrettable that this report was dated 19 September 2004, the day before the hearing but Ms Hart, who appeared on behalf of the Secretary of State, did not seek an adjournment to deal with the additional material, although we got the matter back to enable her to take instructions from sources within the Home Office. The second report of Dr Luling focuses upon the existence of Bimaal militia which she had said the Bimaal have no access to. She referred to paragraph 17 of the Fact Finding Mission of September 2000 and a comment by Mr Long that the Bimaal are able to assemble small armed groups to challenge Haber Gedir dominance. She referred to a report written by Professor K. Menkhaus of the Department of Political Science, Davidson College, prepared for WriteNet in November 2000 in which he said:

"The security situation has not improved in Merka, where a complex power struggle pits the Haber Gedir-dominated shari'a administration against the Bimaal clan and a new front, the Bimaal Resistance Movement. The Bimaal regard the Haber Gedir as occupiers, and his part of their effort to discredit the shari'a administration attacked international agency compounds earlier this summer. The Haber Gedir have responded by allegedly inciting local into clan fights in a divide and rule tactic."

19. Dr Luling states:

"The name 'Bimaal Resistance Movement' shows how they see themselves and indicates the sort of activity of a engaging: hit-and-run raids designed to destabilise the occupying force. This does not amount to providing protection to their fellow townspeople. The situation in the Marka area has not materially altered since this report."

20. In her evidence to us, Dr Luling repeated the point made in her first report that although, historically, the Bimaal are one of these several groups into which the Dir are divided, the Dir of north and Somalia are separated from the Bimaal in the south by a about the thousand miles. The Bimaal live in and around Marka and around Kismayo in two separate communities or groups. She was not able to provided information about the situation in and around Kismayo but was able to speak of the Bimaal who live in and around Marka. In the pre-colonial period, the Bimaal were the dominant clan but, as a result of clan movements, they do not now have the sheer weight of numbers of former times. She was not able to estimate the numbers of the Bimaal but estimated it was a few thousands to tens of thousands. She did not know if, numerically, the Bimaal are in the majority in Marka but was satisfied they are a significant minority. They could not be classified as tiny in numbers. Nevertheless, there are no areas where they have any form of control. She conceded that it was an oversight on her part to say the Bimaal have no militia. She explained that this had entered her report because, on a day-to-day basis, reports from the area do not speak of a Bimaal militia. She repeated that the only material is now some four years old and appears to speak of "hit and run" militia.
21. Dr Luling spoke of the risk faced by the appellant on return to Mogadishu. It was her view that Mogadishu is controlled by the Hawiye militia (of which the Haber Gedir is part). She expressed no surprise that there were Bimaal in Mogadishu much considered their security situation would be very uncertain. The Bimaal are not native to Mogadishu, unlike the Benadiri, and had moved into the city usually for business purposes. Like the Benadiri, she considered that the Bimaal in Mogadishu are likely to have developed mechanisms to protect themselves either by paying protection money or marrying a daughter into a dominant clan. In this way, personal alliances were forged with the majority clans but she described such an arrangement as "an unequal alliance".
22. In the course of cross-examination, Dr Luling conceded that the Bimaal are rooted in Somalia and would therefore be regarded differently from those clan is coming initially from outside Somalia. We do not, however, consider that this provides any significantly greater protection for them. Indeed, the evidence suggests that they are subjected to the same type of treatment as some other minority groups. Whilst accepting that it was her phrase to describe the activities of the Bimaal Resistance Movement as in the nature of "hit and run", she considered this was an appropriate gloss on the background material to which we have referred. It was her view that the Resistance Movement was likely to be a group of younger men taking the opportunity, when circumstances permitted, to attack the Hawiye or civilian targets. It was her view, however, that the occasional blowing up of a storehouse was not the same as offering effective protection. In particular, their motives were unlikely to be the provision of security to the ordinary Bimaal community.
23. Mr Douglass, who appeared on behalf of the appellant, and Ms Hart each accepted that the findings of the adjudicator were inadequate. In particular, there were no proper findings in relation to the specific incidents that formed the subject I can matter of the appellant's claim. Accordingly, we were invited to approach the appeal on the basis of the objective evidence alone and it was only if the objective evidence failed to provide a resolution to the issues raised in this appeal, that we should remit it.
24. In our judgment, the material that we have set out above does not establish that the Bimaal are able to draw upon effective protection in Mogadishu or in Marka. Whilst we accept that in the north of Somalia, the various groups that make up the Dir afford effective protection to clan members, the Dir offer no protection to the Bimaal in southern Somalia. Whatever the numerical position of the Bimaal in Marka and the surrounding area may be, the area is under the control of the Haber Gedir and, in particular, the local warlords in power from time to time. The Bimaal in this area do not control any territory and there are no safe havens. Whilst the objective material indicates that small groups of armed men from the Bimaal clan were able, at least in the year 2000, to mount operations against the Haber Gedir, there is a paucity of current information about the effectiveness of this action. It is at least possible that whatever effect they had in 2000 has not been repeated if only because there are no continuing reports of the Movement's more recent activities. In any event, we are content to describe their activities as in the nature of "hit and run" raids, possibly carried out by small independent groups of individuals. In our judgment, this falls well short of establishing these groups provide effective protection for the Bimaal as a whole. Indeed, the background material fails to establish that the purpose of these groups is to offer protection.
25. The adjudicator considered that the risk faced by the claimant was no greater than the risk faced by any other Somali nationals as a result of the general level of insecurity within the country. For the reasons that we have given, we do not consider that conclusion is sustainable. We are satisfied that the Bimaal in Mogadishu or Marka are not able to look for protection to their own militia or to engage the support of the Dir from northern Somalia. The passage relied upon in the Fact Finding Mission recording Wayne Long's view that the Bimaal have any military capability of their own with which they are able to assemble small armed groups to challenge Heber Gedir dominance does not, in our judgment, establish there is an adequacy of protection. This was also the conclusion reached by the Tribunal in Iimi and we have not been presented with any material that establishes the situation has changed in any, or any significant, extent since 2002.
26. For these reasons, we consider that the appellant has established the adjudicator's assessment of the risk faced by her was based upon a misreading of the background material. Accordingly, we allow her appeal.

Decision: the appellant's appeal is allowed.

ANDREW JORDAN

VICE PRESIDENT

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