United Kingdom Asylum and Immigration Tribunal

OW (Approach to subsequent Tribunal decisions) Somalia [2005] UKIAT 00052

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 20 January 2005

Date Determination notified: 23 February 2005

Before
Mr J G Freeman (vice-president) Mr M E A Innes Mr G F Sandall
Between

 

Secretary of State for the Home Department	APPELLANT
and
OW	RESPONDENT

For the Secretary of State: Miss L Dawes For the claimant: Mr D Medhurst, counsel instructed by Gupta & Partners
DETERMINATION AND REASONS
1. This is a Home Office appeal in the case of a citizen of Somalia who said he came from the Dabarweyne sub-clan of the Benadiri. His appeal was allowed on both asylum and human rights grounds by an adjudicator, Ms SV Pitt, sitting at Taylor House on 22 December 2003.The adjudicator's decision is challenged on three grounds. The first two relate to what might be described as the adjudicator's differential credibility findings. First she disbelieved the claimant on his individual history; but she believed, on the evidence of his supporting witness, a Mr Aagane, that the claimant was indeed a member of the Dabarweyne.
2. That is the finding on which the third ground of appeal turns, suggesting as it does that the adjudicator was not entitled to find that the claimant faced "a differential impact", in terms of the House of Lords decision in Adan [1998] Imm AR 338 without more: on that, a Tribunal decision, now reported, in full, as FJ (Risk-return-Tunni) Somalia CG [2003] UKIAT 00147 is relied on to the effect that mere membership of a minority clan is not enough.
3. The decision in FJ 03-147 was sent out on 14 November 2003: it may have been reported by the time the adjudicator heard the present case on 22 December; but there is nothing to show it was cited to her. If it had been, then no doubt she would have dealt with it. Adjudicators are presumed to know about, and required to take notice of "country guidance" cases, whether cited to them or not, so long as they are in the public domain as such at the date of the hearing before them (see SE (Deportation – Malta – 2002 – General Risk) Eritrea CG [2004] UKIAT 00295); but that system was not yet in operation at the date of the hearing; and FJ 03-147 could only be retrospectively designated as a "country guidance" case. In those circumstances we have no doubt that Miss Dawes was right to concede that the third ground could not succeed.
4. It follows that the appeal turns on the adjudicator's favourable findings on the evidence of the supporting witness Mr Aagane. As the adjudicator pointed out at § 12, Mr Aagane was able to say a number of things about the claimant, their relationship, (maternal cousins), and their clan; when they last saw each other in Somalia, where they lived in Mogadishu, how they met in the UK, the names of their respective mothers and a number of siblings. Mr Aagane was not however able to say whether or not the claimant was married; or whether or not he had any children.
5. The adjudicator quite rightly found this "… somewhat unusual, given that the appellant and witness had been in touch in the UK for several months and they can be expected to update each other on such matters". But she went on "However the witness gave significant detail as to other parts of the appellant's profile and I accept that they are known to each other as claimed. I find Mr Aagane's evidence supports the appellant's claim to be Dabarweyne".
6. The adjudicator, again rightly, considered at paragraph 14 whether the unreliability, as she found it, of the claimant's individual history affected the credibility of his claim to be from a minority clan. As she noted, he gave some correct responses, and some incorrect information on relevant points. However, she did accept that claim as being supported by the witness Mr Aagane. We have looked at the adjudicator's record of proceedings, specifically both at the presenting officer's cross-examination and at her final submissions. There were no further points taken than the ones the adjudicator acknowledged as going against Mr Aagane's credibility.
7. Miss Dawes before us had placed considerable reliance on the case of AB (Somalia) [2003] UKIAT 00125. This contains in our view some very useful guidance on cases of the present kind, which all adjudicators dealing with Somalis would be well advised to take note of. However it is not designated as a "country guidance" case; and it could not be, and was not referred to this adjudicator, since it was issued on 3 June 2004, nearly six months after her decision had come out. It was also issued, it follows, some time before the Court of Appeal decision in CA [2004] EWCA Civ 1165 became available. There is nothing to indicate that the Tribunal in AB 03-125 meant the very country-specific guidance they gave on the proper approach to credibility as amounting to rules of law, though it is clearly the most useful advice on the approach to be taken on the facts of such cases.
8. In our view, so far as AB 03-125 or the considerations set out in it are concerned, Miss Dawes needs to show, in accordance with established principle, that the factual points now relied on were either made to the adjudicator and not dealt with, or so obvious that any reasonable adjudicator would have seen the need to deal with them, before this adjudicator could be said to have made a mistake of law by not doing so.
9. As we have already seen, the two entirely reasonable credibility points made against Mr Aagane's evidence before the adjudicator were acknowledged by her. Although the claimant may be said to have been rather fortunate in the favourable view the adjudicator took on this issue, she did not disregard the points put to her, which were clearly those considered relevant by the obviously competent presenting officer before her. For the reasons we have given we do not think that not considering others involved any mistake of law, and it follows that the Home Office appeal is dismissed.

John Freeman

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