HH & others (Mogadishu: armed conflict: risk)

JurisdictionEngland & Wales
CourtAsylum and Immigration Tribunal
JudgeSenior Immigration Judge P R Lane
Judgment Date22 Nov 2007
Neutral Citation[2008] UKAIT 22

[2008] UKAIT 22

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Before

SENIOR IMMIGRATION JUDGE Storey

SENIOR IMMIGRATION JUDGE P R Lane

Mrs L R Schmitt JP

Between
HH & others
Appellants
and
The Secretary of State for the Home Department
Respondent
Representation:

For appellant H: Mr J Collins, Counsel, instructed by Sheikh & Co.

For appellant S: Mr R Young, Solicitor of Sheikh & Co.

For appellant A: Mr I Maka, Counsel, instructed by Messrs Sultan Lloyd

For the respondent: Mr J Swift, Mr S Wordsworth & Ms D J Rhee, Counsel, instructed by the Treasury Solicitor.

HH & others (Mogadishu: armed conflict: risk) Somalia CG

(1) In deciding whether an international or internal armed conflict exists for the purposes of paragraph 339C of the Immigration Rules and the Qualification Directive (but not for any wider purpose outwith the jurisdiction of the Tribunal), the Tribunal will pay particular regard to the definitions to be found in the judgments of international tribunals concerned with international humanitarian law (such as the Tadic jurisdictional judgment). Those definitions are necessarily imprecise and the identification of a relevant armed conflict is predominantly a question of fact.

(2) It will in general be very difficult for a person to succeed in a claim to humanitarian protection solely by reference to paragraph 339C(iv) of the Immigration Rules and article 15(c) of the Directive, ie. without showing a real risk of ECHR article 2 or article 3 harm.

(3) Applying the definitions drawn from the Tadic jurisdictional judgment, for the purposes of paragraph 339C of the Immigration Rules and the Qualification Directive, on the evidence before us, an internal armed conflict exists in Mogadishu. The zone of conflict is confined to the city and international humanitarian law applies to the area controlled by the combatants, which comprises the city, its immediate environs and the TFG/Ethiopian supply base of Baidoa.

(4) A person is not at real risk of serious harm as defined in paragraph 339C by reason only of his or her presence in that zone or area.

(5) Neither the TFG/Ethiopians nor the Union of Islamic Courts and its associates are targeting clans or groups for serious harm. Whilst both sides in the conflict have acted from time to time in such a way as to cause harm to civilians, they are not in general engaging in indiscriminate violence.

(6) Clan support networks in Mogadishu, though strained, have not collapsed. A person from a majority clan or whose background discloses a significant degree of assimilation with or acceptance by a majority clan will in general be able to rely on that clan for support and assistance, including at times of displacement as a result of security operations, etc. Majority clans continue to have access to arms, albeit that their militias no longer control the city.

(7) A member of a minority clan or group who has no identifiable home area where majority clan support can be found will in general be at real risk of serious harm of being targeted by criminal elements, both in any area of former residence and in the event (which is reasonably likely) of being displaced as described in sub-paragraph (6) above. That risk is directly attributable to the person's ethnicity and is a sufficient differential feature to engage the Refugee Convention, as well as article 3 of the ECHR and paragraph 339C/article 15(c) of the Qualification Directive (but for the first sub-paragraph (ii) of paragraph 339C).

(8) The evidence discloses no other relevant differentiating feature for the purposes of those Conventions and the Directive.

(9) The issue of whether a person from a minority clan or group falls within sub-paragraph (7) above will often need specific and detailed consideration. The evidence suggests that certain minority groups may be accepted by the majority clan of the area in question, so as to be able to call on protection from that clan. On the current evidence, it may therefore not be appropriate to assume that a finding of minority group status in southern Somalia is itself sufficient to entitle a person to international protection, particularly where a person's credibility is otherwise lacking.

(10) Subject to sub-paragraph (9) above, outside Mogadishu and its immediate environs, the position in southern Somalia is not significantly different from that analysed in NM and Others (Lone women-Ashraf) Somalia CG [2005] UKIAT 00076

(11) Air travel to and from Mogadishu has not been significantly interrupted; nor has the mobile telephone network in southern Somalia.

(12) Subject to what is said above, NM continues to be country guidance. However, FK (Shekal Ghandershe) Somalia CG [2004] UKIAT 00127is not to be relied on as authority for the proposition that all members of the Sheikhal Jasira or the Sheikhal Ghandershe are as such entitled to international protection as unprotected minorities. The evidence on which the Tribunal inAA (Risk-Geledi-Benadiri Clan) Somalia [2002] UKIAT 05720reached its conclusions is also now materially out of date and unreliable and should no longer be followed.

DETERMINATION AND REASONS
Introduction
1

The appellants are female citizens of Somalia. Appellant H, who gave her date of birth as 3 February 1967, claimed to have arrived in the United Kingdom in 2005 for the purposes of family reunion. On 26 May 2006 she was convicted at Croydon Crown Court and sentenced to nine months imprisonment for the offence of seeking leave to remain in the United Kingdom by means which included deception. The court recommended that appellant H should be deported. She appealed against that decision, asserting that she was an Ashraf and would suffer persecution or other serious harm, if returned to Somalia. The original Tribunal, sitting at Birmingham in March 2007, did not find the appellant to be credible as regards her Ashraf ethnicity or, indeed, anything else about her claim, apart from her coming from Mogadishu. On 19 June 2007 the Tribunal, on reconsideration, found that there was a material error of law in the determination of the original Tribunal, concerning its assessment of the risk to the appellant, as a woman, returning to Mogadishu as at March 2007. It is common ground that this is the only matter which is capable in law of preventing appellant H's deportation.

2

Appellant S entered the United Kingdom on 14 January 2004 and claimed asylum two days later. Her claim having been refused on 31 May 2005, she appealed to the Tribunal which, by a determination that followed a hearing before an Immigration Judge in October 2005, dismissed the appellant's appeal.

3

On 24 October 2006, the Tribunal, on reconsideration, found that there was a material error of law in the determination of the Immigration Judge. Senior Immigration Judge Jarvis's reasons for so finding are as follows:-

  • “1. The Appellant is a citizen of Somalia, whose date of birth is given as 10 April 1976. She claims to have experienced being persecuted and other serious harm in the past in Somalia and to have a well-founded fear of being persecuted and of other serious harm in Somalia, should she be returned there, together with her dependent child, by reason of her membership of the minority Sheikhal Jasira clan, at the hands of members of majority clans, from whom the authorities are unable to protect her and her child. On 31 May 2005 the Respondent refused to grant leave to enter or remain in the UK on refugee or human rights grounds.

  • 2. The Appellant appealed. Immigration Judge Goldfarb dismissed the Appellant's appeal in a determination issued in October 2005. The Appellant then sought and obtained an order for reconsideration from Senior Immigration Judge Lane which is dated 28 October 2005. It was found to be arguable that the Immigration Judge had erred in law in

    • • her approach to the expert report of Dr Luling

    • • failing to have any regard to the explanation given by the Appellant for not attending for a language test

    • • misapplying evidence as to the Sheikhal Loboge sub-clan

    • • concluding that the Appellant was a dependent of her uncle in Saudi Arabia

    • • concluding that the Appellant was not telling the truth regarding her raising of funds to travel.

  • 3. Mr R Young of Sheikh and Co. appeared on behalf of the Appellant. He relied upon the grounds. Although the expert had stated that the Appellant's knowledge of her clan was ‘scrappy’, the Immigration Judge had completely failed to take into account that she also found it to be accurate and that it was likely that the Appellant is a member of the Sheikhal Jasira. There had been consideration of extracts from the report only and the evidence had not been considered in the round. There had been failure to note that the Appellant appears to speak the Af Reer Hamar dialect which is the dialect of the Benadiri.

  • 4. As to the language test, the Immigration Judge had clearly failed to take into account the fact that the Appellant had explained that she did not know what was required of her in relation to a language test. It appears that the Respondent and the Immigration Judge have misapplied the evidence about the Sheikhal Loboge, mistakenly, it seems, believing that the Appellant was in some way claiming something that she was not, and wrongly holding that against her. The Appellant had clearly stated that her clan is not affiliated to the other clans known as Sheikhal, including the Loobogey (i.e. Loboge). Dr Luling in her expert report makes clear that the Sheikhal of Jasira and the Gandershe are ethnically distinct from other groups such as the Sheikhal Loboge. The Immigration Judge had been referred to two decisions of the Tribunal in which preference had been given to the evidence of Dr Luling as opposed to that in the Joint British Danish, Dutch Fact Finding Mission to Nairobi.

  • 5. There was nothing implausible, Mr Young submitted, in the Appellant...

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