UKSC 49
On appeal from:  EWCA Civ 426
MA (Somalia) (Respondent) v Secretary of State for the Home Department (Appellant)
Lord Phillips, President
Sir John Dyson, SCJ
JUDGMENT GIVEN ON
24 November 2010
Heard on 11 October 2010
Elisabeth Laing QC
Deok Joo Rhee
(Instructed by Treasury Solicitor)
Richard Drabble QC
(Instructed by CLC Solicitors)
SIR JOHN DYSON SCJ (delivering the judgment of the court)
The relevant country guidance decision of the AIT
"On the present evidence we consider that Mogadishu is no longer safe as a place to live for the great majority of its citizens. We do not rule out that notwithstanding the above there may be certain individuals who on the facts may be considered to be able to live safely in the city, for example if they are likely to have close connections with powerful actors in Mogadishu, such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs. However, barring cases of this kind, we consider that in the case of persons found to come from Mogadishu who are returnees from the UK, they would face on return to live there a real risk of persecution or serious harm and it is reasonably likely, if they tried staying there, that they would soon be forced to leave or that they would decide not to try and live there in the first place."
The Standard of Proof
"132. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes …. that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned …" (emphasis added).
Relationship between lack of credibility and the assessment of risk
"39. …. While they are unlikely to have fallen into any of the categories reported in para 9 above, they were of an age to have moved into the student category envisaged by the AIT. Since they put forward no truthful material about what they were doing in the relevant period, it is in my view impossible to say that there is a reasonable degree of likelihood that during that period the appellants did not move into the student category.
40. At the same time, it is equally impossible to say that it is likely that they did enter that category. That however is not the test. Mr Nicol was wrong in suggesting that it was for the Secretary of State to produce evidence to that effect. That would indeed be to reverse the burden of proof. As this court put it in Ariaya and Sammy v Secretary of State for the Home Department  EWCA Civ 48, cited in para 12 above, it may not be necessary for the appellant in such circumstances to say much, but he must say something, adduce some evidence that puts him in a vulnerable position, before the effective burden of contradicting his case passes to the Secretary of State."
"The evidence referred to above, and despite MY's failure to give truthful evidence either about her activities in Eritrea or about her actual exit from that country, drives me to the conclusion that even though I cannot say how MY actually left Eritrea, there must, if only by elimination of other possibilities, be a reasonable likelihood that she left illegally."
"53. In my judgment that circumstance poses great difficulties for MY's case. The fact (if it be so) that it is reasonably likely that any 17 year old girl from Eritrea, about whom nothing else relevant is known, left the country illegally does not entail the conclusion that this particular 17 year old girl did so. The reason is that the probability that a particular person has or has not left illegally must depend on the particular facts of her case. Those facts may produce a conclusion quite different from that relating to illegal exit by members of such a class of persons about whose particular circumstances, however, the court knows nothing more than their membership of the class. There may indeed be a general probability of illegal exit by members of the class; but the particular facts may make all the difference. I think with respect that this consideration lies behind the observations approved by Richards LJ in Ariaya and Sammy v Secretary of State for the Home Department  EWCA Civ 48, and para 449 in MA, which Buxton LJ cites at paras 12 and 13.
54. The position would only be otherwise if the general evidence was so solid as to admit of only fanciful exceptions; if the court or tribunal concluded that the 17 year old must have left illegally whatever the particular facts."
"Unless it can safely be said that exit by any 17 year old girl is illegal, whether it is reasonably likely that the exit by an individual 17 year old girl was illegal will depend on the facts of her particular case. Her failure to give a credible account of those facts may lead to the conclusion that she has not shown that there is a reasonable likelihood that her exit was illegal. "
"The lie may have a heavy bearing on the issue in question, or the tribunal may consider that it is of little moment. Everything depends on the facts. For example, if in the Eritrea cases the Secretary of State had prima facie evidence that the appellants had left legally, the tribunal might think it appropriate to put considerable weight on the fact that the claimant told lies when seeking to counter that evidence. The lie might understandably carry far less weight where, as in YL itself, the judge is satisfied that the appellant has lied where the lie is against her interests."
"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly, it must relate to a material issue. Thirdly, the motive for the lie must be a realisation of guilt and fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family…."
The AIT's determination in more detail
"[W]e emphasise that although we have indicated our findings when we have considered the submissions, and, in places, the evidence, we did not make any findings until we had considered the entirety of the evidence in the round, with the submission made."
"105. The Tribunal is not unfamiliar with the difficulties created by appellants who have not been truthful but who still may be at risk. This was considered by the Court of Appeal in GM (Eritrea) v Secretary of State for the Home Department  EWCA Civ 833. We must be very careful not to dismiss an appeal just because an appellant has told lies. Even if very large parts of his story have been disbelieved it is still possible that the appellant has shown that he would be at risk on return. An appellant's own evidence has to be considered in the round with other evidence and that can include unimpeachable evidence from expert reports or country guidance cases or other evidence about the general state of affairs in that country.
106. For reasons very properly emphasised by Mr Drabble and spelled out in the case of AM, Mogadishu is a desperately difficult place and it is probably not going too far to say that the respondent should think twice before making anybody go there against his or her will.
107. We do not believe the appellant but we have to decide if the background conditions show that he will be at risk. In para 178 of AM the Tribunal identified people as examples of people who may be safe in Mogadishu. The Tribunal said: "We do not rule out that notwithstanding the above there may be certain individuals who on the facts may be considered to be able to live safely in the city, for example if they are likely to have close connections with powerful actors in Mogadishu, such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs. However, barring cases of this kind, we consider that in the case of persons found to come from Mogadishu or returnees from the UK, they would face on return to live there a real risk of persecution or serious harm..."
108. We are not able to find positively that the appellant is a person with close connections with powerful actors in Mogadishu and so on.
109. The difficulty is that the appellant has not told us the truth about his links and circumstances in Mogadishu and we cannot exclude the possibility that he is a person with connections of this kind. The point is that it is not fanciful to say that he would not necessarily be at risk on return. Some people are not. Even though the appellant has to prove only a real risk rather than a probability of him being at risk we cannot make the necessary findings when he will not tell the truth about his connections and contacts there.
118. [Mr Drabble] submitted that it was fanciful to suggest that the appellant came into any of the categories of people identified at para 178 of AM as being not at risk. The appellant would be at risk in Mogadishu and his appeal should be allowed.
119. Drawing all these things together we find that this appellant would be returned to Mogadishu. We find that he has links with Somaliland and would probably be accepted by the community there if he could get there. We find that it would be dangerous in fact too dangerous for him to travel from Mogadishu to Somaliland if he is telling the truth when he claims not to have any links with the country. We accept that some people do make the journey. There is no clear evidence about how they travelled. We cannot find that this appellant could follow their example. It is clearly the case (and no one has suggested otherwise) the appellant would be allowed through the airport at Hargeisa. Whilst we accept that the risks diminish as a traveller gets further away from Mogadishu a traveller has to get away from Mogadishu before that becomes an advantage and there are risks travelling around there. This appellant is going to be at risk if we accept his evidence of having no contacts there.
120. We do not accept his evidence about that. He was manifestly untruthful. We have reflected carefully on this because we are aware of the time that has elapsed, of which a full explanation has been given, since the appeal was heard. It is not a matter of nuance or inference. The appellant is blatantly untruthful and no passage of time has impacted our findings on that point.
121. Para 178 of AM does not give an exclusive list of people who are not at risk. It makes the point there are people who are not at risk. The burden is on the appellant and he has not told the truth about his links with Mogadishu and we are not able to say that he is a person who has shown he would be at risk there. He has stopped proper enquiry of a kind that might reveal the links and protection he would have. It would be very sad if, by so doing, the appellant has deprived himself of protection that he would otherwise need but he has told lies and must accept the consequence of that. It does diminish his credibility and makes it harder for him to prove his case.
122. In all the circumstances we dismiss the appeal."
Decision of the Court of Appeal
"The evidence he relies upon is in particular the fact that the appellant has been in the UK for some 15 years, and that for almost all of the last 12 or so he has been in detention of one sort or another. In addition, his parents were from Hargeisa, not Mogadishu, and the evidence of Mr Höhne was to the effect that he would not get protection from the Isaaq clan in Mogadishu given the dramatic evacuation from that city. In the circumstances, Mr Drabble submits that it is fanciful to think that the appellant would be likely to fall into the exceptional category of persons with contacts in Mogadishu who could provide the requisite protection."
"117. We think, with respect to the Tribunal, that it is there adopting the wrong approach. Their analysis suggests that the fact that the appellant has lied has of itself disabled them from reaching a conclusion on the article 3 risk. They seem to be throwing up their hands in despair; since the appellant has concealed the truth, they cannot make any necessary findings. This is further confirmed by para 121 when they say that because his lying has prevented a full and proper inquiry, there is no relevant finding the Tribunal can make.
118. That does not, however, follow from GM. They first have to ask whether there is other evidence, independently of his unreliable testimony, casting light on the appellant's particular situation. If so, they must have regard to that evidence. As Buxton LJ put it in GM see para 98 above), there does not need to be much evidence, only sufficient to suggest that there is a real risk of persecution and thereby shift the burden to the Secretary of State to show otherwise. Nowhere does the Tribunal say that the only potential evidence is the appellant's rejected testimony and that without it there is no relevant evidence, and we do not think that it can be fairly inferred from their decision that this was how they approached the matter. For example, there is no reference in the whole judgment to the fact that the appellant has spent the best part of the last 12 years in prison or administrative detention in the UK. In our view that must on any view have relevance to the likelihood of this particular appellant having current contacts in Mogadishu which will afford him the necessary protection.
119. In any event, in our judgment, if they did analyse the issue in that way, we agree with Mr Drabble that it was not a conclusion open to them on the evidence. That evidence was that the appellant was from a clan which was in the minority in Mogadishu; that he had not been there for some 15 years; and that for most of that time he had been in detention. Whatever links might exceptionally exist to provide protection for an Isaaq returning to Mogadishu, there was in our view sufficient evidence adduced before the Tribunal at least to establish a real risk that it was unlikely to apply to him. He was not simply putting himself into the general category of persons returning to Mogadishu, nor even of a minority clan member taking that step, and then relying on the relevant statistics as to how such persons would in general be treated. There was the particular feature of his history in the UK -the lengthy period and the fact of detention - which constituted evidence relevant to the particular and specific risks which he faced and which enabled the court to make an assessment of risk on the basis of evidence independent of his own testimony.
120. We agree that the Tribunal ought to have made an assessment on the basis of that evidence, and had they done so, they must have concluded that there was a real risk that he would not obtain the relevant protection. Without it, in the light of AM and AM he was plainly at risk of adverse article 3 treatment, and therefore his deportation would be unlawful."
Should the Court of Appeal have interfered in this case?
"This is an expert Tribunal charged with administering a complex area of law in challenging circumstances….[T]he ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the Tribunal will have got it right….They and they alone are judges of the facts…Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."