Application For Leave To Appeal By A.h.s.+miss S.a.a. V. A Decision Of The Asylum And Immigration Tribunal
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Bonomy,Lord Hardie |
| Neutral Citation | [2010] CSIH 90 |
| Date | 16 November 2010 |
| Docket Number | XA26/09 |
| Court | Court of Session |
| Published date | 16 November 2010 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Clarke Lord Hardie Lord Bonomy | [2010] CSIH 90 XA26/09 OPINION OF THE COURT delivered by LORD BONOMY in Application for Leave to Appeal under Nationality, Immigration and Asylum Act 2002, section 103B by (FIRST) MR A A S and (SECOND) MISS S A A S Applicants; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______ |
Alt: Lindsay; Solicitor to the Advocate General
16 November 2010
[1] The applicants seek leave to appeal against a decision of the Asylum and Immigration Tribunal of 26 November 2008 dismissing their appeals against the decisions of the respondent by letters of 4 January 2007 to refuse their claims for asylum and to remove them to Somalia. These decisions were made following a second stage reconsideration of their appeals.
[2] The first applicant is father of the second who was born on 1 February 2006. The first applicant arrived in the United Kingdom with the second applicant, his wife and their male son on 16 November 2006. The first applicant claimed asylum on behalf of his family on the basis that he was a member of a persecuted minority clan in Somalia. An additional claim for asylum was made on behalf of the second applicant on the basis that she was at risk of requiring to undergo female genital mutilation if returned to Somalia. Throughout the various proceedings the outcome of the additional claim for asylum has been the same as that of the first applicant on behalf of his family. By the time the case came before us the first applicant and his wife had separated and the second applicant was residing with her mother. No indication was given of the present position of the son of the first applicant and his wife.
[3] In his written submissions and also in his oral submissions before us Mr Caskie, counsel for both applicants, identified six grounds on which he proposed to contend that the Designated Immigration Judge ("Tribunal") had erred in law in the Determination and Reasons dated 26 November 2008. The first was confined to the additional claim for the second applicant and was that the Tribunal had failed to provide an adequate explanation for deciding that female genital mutilation could be avoided in this case. The others related to the claim of the first applicant on behalf of himself and his family. The second and third concerned the treatment of the evidence of witnesses FA S and L S H led on behalf of the first applicant, which the first applicant contended the Tribunal had failed to consider along with the other evidence, particularly that of the first applicant and his wife, before deciding on their credibility. The fourth ground also related to the treatment of evidence, on this occasion the Tribunal's assessment of the plausibility of the first applicant's account of his escape from enslavement without having regard to the significance of cultural context as a source of explanation for his actions. The fifth ground concerned the first applicant's mental health; it was asserted that in considering whether the high threshold required to establish failure to comply with Article 3 of the European Convention on Human Rights had been met the Tribunal left significant material out of account. The final ground, which was not argued at any earlier stage, depended upon the decision by the United Kingdom government on 22 September 2008 to revoke its derogation to the ratification of the United Nations Convention on the Rights of the Child in respect of immigration matters; as a result the Tribunal was bound to have regard to the best interests of the second applicant as a primary consideration in determining both claims and had failed to do so.
[4] While grounds 1, 5 and 6 relate to specific matters quite separate from the credibility of the first applicant and his wife, they only arise for consideration in the event that it is established that the first applicant is a Somali from Somalia. The Tribunal said at various points in the Determination and Reasons ("Determination") that it had not been established that the family were Somalis from Somalia. Paragraph 60 is in the following terms:
"Due to lack of credibility I find that the Appellants are not refugees. They may be from Somalia but I do not find that they are members of a minority clan. They may not even be from Somalia. The Libyan issue casts doubt on their nationality but based on the evidence given I do not believe that the United Kingdom would be in breach of its obligations to return the Appellants to Somalia today under the Geneva Convention".
In paragraph 67 the Tribunal added:
"I do not know whether the Appellants are from Somalia or not, but if they are, I do not believe that they are of...
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