UK - Supreme Court, 22 November 2010, MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49

Facts:

The applicant was a Somali national and a member of the minority Isaaq clan, Habr Yunis sub-clan.  The procedural history of the case was complex.  The key elements are that the applicant came to the UK in 1995. His claim for asylum was refused and he was granted exceptional leave to remain, which was extended.   In July 2008 the applicant was convicted of a serious criminal offence and the Secretary of State sought to deport him to Mogadishu in Somalia.  This resulted in a series of challenges, which ended with an appeal to the Asylum and Immigration Tribunal.  The appeal was initially allowed on Art 3 of the ECHR grounds, as the Secretary of State successfully relied upon exclusion provisions.  However, upon the Secretary of State’s application for reconsideration, the Tribunal dismissed the appeal.  The Court of Appeal overturned the Tribunal’s decision.  The question before the Supreme Court was whether the Court of Appeal was correct to do so.

Decision & reasoning:

The Secretary of State’s appeal was allowed.

The Supreme Court held that the Tribunal had been faced with a general problem in assessing asylum appeals. It identified the problems as being that “there may be objective general undisputed evidence about the conditions in the country to which the Secretary of State wishes to send the applicant which shows that most of the persons who have the characteristics of, or fall into the category claimed by, the applicant would be at real risk of treatment contrary to Art 3 of the ECHR or persecution for a Refugee Convention reason (as the case may be), but that a minority of these, because of special circumstances, are not subject to such risk.”  The current country guidance held that this was the case in respect of Mogadishu, where all of the population was identified as being at risk of ill treatment in contrast with Art 3 but individuals who have connections with powerful actors in Mogadishu may be safe.  

In assessing the risk to the applicant, the Tribunal held that it was not “able to find positively that the appellant is a person with close connections with powerful actors in Mogadishu...”.  However, because the Tribunal held that the applicant had not told the truth about his circumstances and connections in Mogadishu, it could not “exclude the possibility that he had connections of this kind”. 

The Supreme Court held that, in this sort of case, “[w]here the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence.”  It continued to hold that “...the significance of lies will vary from case to case. In some cases, the [Tribunal] may conclude that a lie is of no great consequence. In other cases, where the appellant tells lies on a central issue in the case, the [Tribunal] may conclude that they are of great significance”.  The Tribunal had not erred in holding, in the words of the Supreme Court, that “...because [the applicant] had not told the truth about his links and circumstances in Mogadishu, the possibility that he was a person with connections in Mogadishu could not be excluded. In other words, he had not discharged the burden of proof which the [Tribunal] had correctly said rested on him.”

In addition, the Supreme Court recognised that it was current UK Court and Tribunal practice that the standard of proof in assessing past or present facts in claims for international protection is “a reasonable degree of likelihood” or “a real possibility”.  However, the Court indicated the desirability of this being decided authoritatively by the Court in a future case.

Outcome:

The Secretary of State’s appeal was allowed and the decision of the Tribunal, dismissing the applicant’s appeal, was restored.

Observations/comments:

In Sufi and Elmi v United Kingdom (Application Nos 8319/07 and 11449/07) the Fourth Section of the European Court of Human Rights referred to the Court of Appeal’s decision in MA (Somalia).  In assessing the risks to civilians from Mogadishu, it held that  “The Court notes that in AM & AM (Somalia) the Asylum and Immigration Tribunal left open the possibility that certain individuals who were exceptionally well-connected to “powerful actors” in Mogadishu might be able to obtain protection and live safely in the city. The Court has not received any submissions specifically addressed to this issue and observes that it is one on which the country reports have been largely silent. As Article 3 requires the decision-maker to focus on the foreseeable consequences of removal for each individual applicant, it would not exclude that it might be shown that a well-connected individual would be protected in Mogadishu. However, it considers it likely that this would be rare. First, in the light of the Tribunal decision it would appear that only connections at the highest level would be in a position to afford such protection. For example, it would not be enough to show that an individual was a member of a majority clan. Secondly, it recalls that in HH (Somalia) and Others v Secretary of State for the Home Department [2010] EWCA Civ 426 the Court of Appeal found that an applicant who had not been to Somalia for some time was unlikely to have the contacts necessary to afford him protection on return. It is therefore unlikely that a Contracting State could successfully raise such an argument unless the individual in question had recently been in Somalia”.  It summarised its view as being that “the Court considers that the situation of general violence in Mogadishu is sufficiently intense to enable it to conclude that any returnee would be at real risk of Article 3 ill-treatment solely on account of his presence there, unless it could be demonstrated that he was sufficiently well connected to powerful actors in the city to enable him to obtain protection”.  The compatibility of these findings with the Supreme Court’s decision in MA (Somalia) has yet to be considered by the UK courts

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