As and AA (Effect of previous linked determination) Somalia
| Jurisdiction | England & Wales |
| Judgment Date | 06 July 2006 |
| Neutral Citation | [2006] UKIAT 52 |
| Date | 06 July 2006 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
Mr C M G Ockelton, Deputy President, Senior Immigration Judge Jordan and Senior Immigration Judge McGeachy
Representation
Mr Frank Femi Omere instructed by Wilson & Co., for the first Claimant;
Ms Christa Maria Fielden instructed by Douglas & Partners, for the second Claimant;
Mr Peter Deller, Home Office Presenting Officer, for the Secretary of State.
Cases referred to:
AC (Witness with refugee statusEffect) Somalia [2005] UKAIT 00124; [2005] Imm AR 714
Clifford v Timms; Clifford v Phillips;Hill v CliffordELR [1907] 2 Ch 236
DB (Dependent RelativeAppeals Procedure) Pakistan [2003] UKIAT 00053
Devaseelan (Second AppealsECHRExtra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702; [2003] Imm AR 1
Djebbar v Secretary of State for the Home DepartmentUNK [2004] EWCA Civ 804; [2004] Imm AR 497; [2004] INLR 466
Hollington v F Hewthorn and Co LtdELR [1943] KB 587
In the Estate of CrippenELR [1911] P 108
R v Cardiff County Council ex parte Sears Group Properties Limited [1998] 3 PLR 55
R (on the application of Boafo) v Secretary of State for the Home DepartmentUNK [2002] EWCA Civ 44; [2002] Imm AR 383; [2002] INLR 231
R v Secretary of State for the Home Department ex parte Alakesan [1997] Imm AR 315
R v Secretary of State for the Home Department ex parte Ali [1984] Imm AR 23
R v Secretary of State for the Home Department ex parte Danaei [1997] Imm AR 366
R v Secretary of State for the Home Department ex parte Danaei [1998] Imm AR 84; [1998] INLR 124
R v Secretary of State for the Home Department ex parte Elhasoglu [1997] Imm AR 380
R v Warden of the FleetENR (1699) 12 Mod 337
R v Warwickshire County Council ex parte Powergen plc [1997] 3 PLR 62
S v Secretary of State for the Home DepartmentUNK [2002] EWCA Civ 539; [2002] INLR 416
Sturla v FrecciaELR (1880) 5 AppCas 623
Thrasyroulou v Secretary of State for the Environment and Others;Oliver and Others v Secretary of State for the Environment and the London Borough of HaveringELR [1990] 2 AC 273
TK (Consideration of Prior DeterminationDirections) Georgia [2004] UKIAT 00149
Procedure and process consideration of case law weight to be given to earlier related decision in another claimant's case evidence assessment of evidence credibility of the Claimants contents of earlier related decision
The Claimants, citizens of Somalia, applied for asylum wholly or partly on the basis of clan membership. In each case a sibling of the Claimant had previously secured refugee status in the United Kingdom as a member of the clan of which the Claimant asserted membership. The Claimants' applications were refused by the Secretary of State for the Home Department, who was not satisfied that they were members of the clans alleged. The Claimants appealed. The appeals were dismissed and permission to appeal to the Immigration Appeal Tribunal (IAT) was refused. That refusal was quashed by the High Court on statutory review. The resulting permission to appeal took effect as an order for reconsideration by the Asylum and Immigration Tribunal (AIT). The first Claimant argued, inter alia, that the Adjudicator had not properly taken into consideration the fact that his brother had already been granted asylum on the basis of his clan membership. The second Claimant argued, inter alia, first, that previous decisions were absolutely binding on the IAT unless successfully appealed; secondly, that the Adjudicator erred in law in not considering himself bound by the finding that the second Claimant's sister was at risk of persecution on the basis of her clan membership; thirdly, that this finding should properly have led to the conclusion that there was a real likelihood that he was a member of the same clan.
Held, affirming the original determinations dismissing the Claimants' appeals against the decisions of the Secretary of State:
(1) a decision-maker considering a second application or claim, or second proceedings, to which a person involved in earlier proceedings was a party, should have regard to the previous judgment; if there was no good reason for departing from that judgment, as between the parties to that litigation, it should be treated as settling the issues with which it was concerned and the facts on which the determination was based (para 61);
(2) in assessing a claimant's case, where it was argued that an earlier related decision pertaining to a different claimant was of relevance, that decision had no evidential effect and gave rise to no presumption with respect to the later case; the contents of the earlier decision could be of value as evidence of what was said before that decision was reached; the earlier decision itself was simply the background to or a starting point for the determination of the later case (paras 66, 67 and 72);
(3) while it was probably true to say that in the general interests of good administration decisions should not be unnecessarily divergent, the authorities did not support any assertion that a determination in one claimant's case had binding effect on the related case of another claimant (paras 66 and 68);
(4) the earlier decision was simply a starting point which could be taken as establishing the issue in question unless there was any reason not to do so; reasons to depart from an earlier decision would depend on the case but factors such as the passage of time and the submission of different evidence could be relevant (paras 67 and 71);
(5) for the purposes of this case, even if the Adjudicator in the first Claimant's appeal had made an error of law in his treatment of the decision relating to the first Claimant's brother, the error was immaterial and the same conclusion would have been reached after consideration of the evidence as a whole; in the case of the second Claimant, the determination relating to his sister was not put before the Adjudicator and there was no onus on the Adjudicator to enquire for it; in any case, even if he had seen the determination, the outcome would not have been materially different bearing in mind the extra evidence before him (paras 7476).
Determination and Reasons
C M G Ockelton, Deputy President
The issues
[1] These two appeals were heard together. In each case, there was a determination by an Adjudicator dismissing the Appellant's appeal, an application for permission to the Immigration Appeal Tribunal which was refused, and a successful application for Statutory Review of that refusal. The grants of permission to appeal to the Immigration Appeal Tribunal by the High Court in each case operates, following the commencement of the appeals provisions of the 2004 Act, as an order for reconsideration by this Tribunal.
[2] In AS's case, the reasons given by Hughes J for reversing the decision of the Tribunal refusing permission were as follows:
The question raised by the appeal is whether the Adjudicator was or was not bound to accept that the applicant was Bravanese (and thus, as was conceded, entitled to succeed) given that (1) Omar was his brother, and (2) Omar had been granted asylum on the basis of his Bravanese origin. The Adjudicator held at para 37 that he was not bound by the authorities to conclude as the applicant wished. Whether he was or was not is a question of law, and the appeal on this point, was by no means certain to succeed, is not without real prospects of doing so.
[3] In AA's case, the reasons given by Pitchford J are as follows:
This application raises a serious issue to what extent, if any, an Adjudicator may be bound by the findings of a colleague in a related appeal. I consider that it requires determination after full argument. My decision should not be taken as a concluded view on the merits.
[4] Those two decisions set out with clarity the issues now before us. Each of these appeals concerns a Somali applicant for asylum. In each case, the application was based wholly or partly on the applicant's clan membership. AS claims to be Bravanese and AA claims to be an Ashraf. In each case, it is accepted, for the purposes of this appeal at any rate, that if the clan membership is made out the appeals succeed. In each case, the Appellant had a sibling who had succeeded in securing refugee status as a member of the clan of which the Appellant claimed membership. Siblings belong to the same clan: so in each case the Appellants claim to be entitled to succeed in reliance partly at least on the success of the sibling's claim.
AS
[5] AS claimed asylum at Croydon on 2 March 2004. He said that he was Somali and was born on 18 December 1972. He said that he had left Somalia by boat for Yemen in 1995 and had lived in refugee camps in Yemen until recently. He said that he had left Yemen by air on 28 February 2004 with the assistance of an agent. He said that he had had the telephone number of his brother Omar and had contacted him seven months before he left Yemen. He did not, however, know in advance that he was coming to the United Kingdom. When he arrived in Heathrow Airport the agent saw him through immigration and then took from him the travel documents that had been used for that purpose. The Appellant said that he met a Somali man passing and asked how to get in touch with his brother. He went then to stay with his brother. At his first asylum interview, he gave Omar's full name and said that he had been granted asylum in the United Kingdom. He was not able at that stage to give Omar's date of birth.
[6] There were three further asylum interviews, and the Appellant, now assisted by solicitors, produced documentation supporting his claim. Amongst that documentation is a letter from the Somali Bravanese Association in London, in which the Secretary of that Association writes to confirm that [AS] is a Somali national of Bravanese ethnic origin. Appended to that letter is an entry as follows:
Below are the persons who are certifying and testifying that [AS]...
To continue reading
Request your trial
-
The Queen (on the Application of Peters Bimbola Abidoye) v The Secretary of State for the Home Department
...Department, for the Secretary of State. Cases referred to: AS and AA (Effect of previous linked determination) Somalia [2006] UKAIT 52; [2006] Imm AR 586 Abidoye v Secretary of State for the Home Department [2018] EWHC 2166 (Admin) Devaseelan (Second Appeals — ECHR — Extra-Territorial Effec......
-
AA (Somalia) v Secretary of State for the Home Department; AH (Iran) v Same
... ... , and thus at any rate as a matter of English law only had effect on the international plane. It was not binding and enforceable in domestic ... That is wrong. The High Court is not bound by its own previous decisions though it will treat them with a high degree of respect: see R ... Such claimants are not interested in the rapid determination of the application they make. They are on the contrary likely to be ... He noted that normally arrangements would have been made for such linked cases to be heard together. He invited the Home Office to reconsider the ... ...