UK - Upper Tribunal, 28 November 2011, AMM and others v Secretary of state for the Home Department [2011] UKUT 00445

Facts:

AMM was from Jowhar, as was the applicant AM in the case HH (Somalia) & Others v Secretary of State for the Home Department [2010] EWCA Civ 42 (HH), whose appeal was remitted to the Tribunal from the Court of Appeal.

MW was a woman from a majority clan and had been granted discretionary leave to remain with her husband and British children but was pursuing a claim against refusal of asylum and humanitarian protection.

ZF was a sixty six year old woman and was not believed to be a member of the REER Hamar minority clan and on the basis of a linguistic analysis was found to be from North west Somalia, Somaliland - although it was found that she may have spent time in Mogadishu. Following the decision in HH, the Tribunal was obliged to consider whether she could safely travel to Somaliland.

FM was a man from Hamar JaabJab district of Mogadishu. An immigration Judge had suggested that he could relocate internally but did not specify where and his case was remitted from the Court of Appeal for fresh consideration by the Tribunal. 

AF was a member of the Midgan (Madhiban) minority clan, came from the coastal city of Merka which is about 70 kilometres south of Mogadishu. It was also accepted that he had lived in Mogadishu, including in the Hamar Weyne and Hamar JadJab districts during periods of intense fighting. Although he had suffered harm, previous Immigration Judges had decided that the harm did not constitute persecution.

While the cases were pending the European Court of Human Rights (ECtHR) handed down judgment in Sufi and Elmi v United Kingdom (Applications nos. 8319/07 & 11449/07) on Art 3 of the European Convention on Human Rights (ECHR). The Court found that removal of Sufi or Elmi from the United Kingdom would breach their Art 3 rights. At the time of AMM’s appeal, Sufi and Elmi was not the final judgment and the Secretary of State still hoped to influence the final judgment.

UNHCR acted as interveners.

Decision & reasoning:

The Tribunal supplied its own summary of the legal findings at the head of the decision.

At the outset the Tribunal considered the “significance” of Sufi and Elmi, but more generally the rulings of the ECtHR. Having  considered  the domestic authorities the Tribunal decided that although United Kingdom Courts were bound to be guided by the standards for assessing country of origin evidence as established in NA v United Kingdom (Application no. 25904/07)  (summarised as accuracy, independence, reliability, objectivity, reputation, adequacy or methodology, consistency and corroboration),  they were not bound to adopt the factual findings of the European Court when the factual evidence before them differed from that before the European Court. The additional evidence came from the UKBA’s Country of Origin Information Service’s “Fact-Finding Mission to Nairobi” in September 2010 and a “Fact Finding Mission” undertaken by FM and AF’s solicitors in May 2011.

The Tribunal observed that more extensive evidence was available to it than was considered by the ECtHR and so it was entitled to attribute weight and make its own findings of fact in these cases, which otherwise would have been disposed of by reference to Sufi and Elmi.

The Tribunal received the submissions of UNHCR but reiterated the view that it was not bound to accept UNHCR’s recommendation that at the time of hearing nobody should be returned to central and southern Somalia.

The Tribunal made general findings in relation to the 1951 Refugee Convention principally focussed on whether persecution would be by reason of religion.

The Tribunal rejected submissions that the restrictions on personal and social activity imposed by Al Shabab amounted to persecution for reasons of religion but accepted that any punishment meted out by Al Shabab to those who transgressed their social rules would amount to persecution because according to the Takfiri Doctrine followed by Al Shabab, Muslims who transgress are to be considered apostates.

The Tribunal, following Sepet and Bulbul, accepted that in principle an application could be based on a conscientious objection to paying “taxes” which supported Al Shabab, which is listed as terrorist organisation by the UK.

It was also accepted, applying current UK authority RT (Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 1285 that subject to findings of fact as to the severity of the punishment or threats from Al Shabab “Every person living [pre-flight] under Al-Shabab control in central and southern Somalia, who could show that they do not genuinely adhere to that organisation’s ethos, would have a good claim to Refugee Convention protection…”

On the issue of  internal flight the Tribunal found that Art 8 of the Qualification Directive was not helpful in allocating the burden of proof but affirmed the position in domestic law that the burden of proof always lay on the applicant, but that in practice to be fair, the possibility of a safe internal refuge should be raised in the administrative letter refusing asylum or humanitarian protection or during the appellate process.

MW’s case was that if she were to be expelled it was reasonably likely that she would be accompanied by her daughter who would be at risk of FGM, even though the child was not subject to removal. The Tribunal referred to domestic law which referred to the duty of the state to ensure that its international obligations were not breached and ruled that if it was reasonably likely that the child would accompany her mother and would be subject to harm, then the anguish experienced by the mother was a relevant consideration. No authority was cited for this finding.

The evidence had disclosed that MW had said that she would permit her daughter to be subjected to FGM to avoid social abuse.The Tribunal doubted that the member states of the EU or signatories to the Refugee Convention intended to provide protection to potential persecutors. The exclusion clauses strongly suggested the contrary.

Art 15 Risk in Mogadishu
After a long summary of the evidence and submissions the Tribunal concluded that at the date of decision “an Art 15 (c) risk exists, as a general matter, in respect of the majority of those in Mogadishu and, as a general matter, as to those returning there from the United Kingdom.”  The Tribunal did identify a category of people who might exceptionally be able to avoid Art 15 (c) risk. These were people with connections to the “powerful actors” in the TFG/AMISOM.

At the date of decision, bearing in mind Al Shabab’s withdrawal from Mogadishu, the Tribunal found that there was not a generalised risk of Art 3 (Art 15 (b)) harm. In individual cases the threshold may be crossed e.g. a female headed household with children, which had no connections in Mogadishu.

The Tribunal noted the absence of evidence relating to the targeting of minority clans, albeit acknowledging that there was still discrimination and concluded that there was no evidence of a risk of persecution by reason of being a member of a minority clan in Mogadishu.

Art 15 Central and Southern Somalia
The Tribunal was not satisfied that the conditions would place civilians at risk of Art 15(c) mistreatment. The Tribunal was satisfied that a returnee to southern or central Somalia would be at risk of harm which would breach Art 3 of ECHR, but reached its conclusion by a different route and on different evidence from that taken in Sufi and Elmi.

Internal Relocation
Given the general findings on risk of persecution (Art 2 of the Qualification Directive ) and serious harm (Art 15) there was a similar finding that internal flight to Mogadishu or to any other area would not be reasonable.

Safe Internal Route
From Mogadishu international airport to the city, notwithstanding the risk of improvised explosive devices, was considered safe under TFG / AMISOM control. There may be safe air routes, but overland travel by road was not safe if it entailed going into an area controlled by Al Shabab. Safety and reasonableness would also be gauged by reference to the current famine. Individuals may be able to show increased risk e.g. women who were not accompanied by a protecting male.

FGM
In general, an uncircumcised, unmarried Somali woman, up to the age of 39, would be at real risk of suffering FGM.

Outcome:

AMM succeeded under the Refugee Convention. He also demonstrated that he was at risk of  Art 3 ECHR harm (Qualification Directive Art 15 (b)) by reference to the risk from Al Shabab.

MW succeeded under the Refugee Convention (Qualification Directive Art 2) she had demonstrated that she was -at risk from Al Shabab, and similarly established a risk under Art 3 (Qualification Directive Art 15(b)).

ZF succeeded under the Refugee Convention.

FM’s claims to be a Refugee and to be at risk of Art 15 (b) harm were dismissed, but he succeeded on his Art 15 (c) claim.

AF also failed under the Refugee Convention and Article 15(b) but succeeded under Art 15 (c) of the Qualification Directive.

Observations/comments:

The Tribunal commented extensively on the difficulties of return to Somaliland and Puntland in paragraphs 525-546 given the reluctance of the authorities to admit those without proven connections to the area and the difficulties associated with the required documentation.

The Tribunal gives its own summary of the “guidance aspects” of the determination which may obviate the need to read the extensive record of the evidence which may soon be of historic interest only.

Other sources:

Practice Direction 12 of the Senior President of the Tribunal’s Directions of 10 February 2010

Art 1(A) Organisation of African Unity Convention Relating to the Status of Refugees 1969.

Symes and Jorro Asylum Law and Practice, 2nd Edition.