MA (Somalia) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Rix,Lord Justice Wilson,Lord Justice Laws
Judgment Date15 January 2009
Neutral Citation[2009] EWCA Civ 4
Docket NumberCase No: C5/2008/0759
CourtCourt of Appeal (Civil Division)
Date15 January 2009

[2009] EWCA Civ 4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL

SENIOR IMMIGRATION JUDGE ALLEN

Before : Lord Justice Laws

Lord Justice Rix

and

Lord Justice Wilson

Case No: C5/2008/0759

AA/06959/2007

Between
Ma (somalia)
Appellant
and
Secretary Of State For Home Department
Respondent

Mr Manjit Gill QC and Mr Abid Mahmood (instructed by Messrs Blakemores) for the Appellant

Mr Jonathan Auburn (instructed by Treasury Solicitors) for the Respondant

Hearing date : Thursday 16 th October 2008

Lord Justice Rix

Lord Justice Rix :

1

The appellant MA is a young woman born on 24 June 1980 who claimed asylum in this country on 13 March 2007 at the Home Office in Liverpool. She has a small daughter born on 24 July 2005. She says that she arrived here on 13 March 2007, but that is in dispute. Her place of arrival is unknown. She claims to have flown here from Addis Ababa in Ethiopia but cannot say by what airline or to what airport. She claims to be of the Bajuni clan from the island of Koyama, which lies off the coast of Somalia, to have lived there all her life, and to be Somali. The Secretary of State refused her claim for asylum under the 1951 Refugee Convention and her claim for humanitarian protection under articles 2 and 3 of the European Convention on Human Rights (ECHR) and/or paragraph 339C of the Immigration Rules: on the grounds that it was not accepted that she was either a Bajuni or from Somalia. Those decisions were notified by letter dated 10 May 2007.

2

Pursuant to those decisions the Home Office issued dated 25 May 2007 two Notices of Immigration Decision. The first was headed “Refusal of Leave to Enter”, referred to the rejection of her asylum and human rights claims, and said “I therefore refuse you leave to enter the United Kingdom”. Rights of appeal were notified, inter alia on the ground that “your removal from the United Kingdom as a result of the decision would breach” the United Kingdom's obligations under the 1951 Refugee Convention or MA's rights under the ECHR. The second notice was headed “Decision to Remove an Illegal Entrant” etc and stated as follows: “You have made an asylum and/or human rights claim. The Secretary of State has decided to refuse your claim for asylum and/or human rights for the reasons stated in the attached letter” (presumably a reference to the letter dated 10 May 2007). This second notice also referred to her rights of appeal inter alia on the ground referred to above. At the end of the notice, against the rubric “Removal Directions”, the following paragraph appeared:

“If you do not appeal, or you appeal and the appeal is unsuccessful, you must leave the United Kingdom. If you do not leave voluntarily, directions will be given for your removal from the United Kingdom to Somalia.”

3

MA did appeal, and it is assumed that she appealed all relevant decisions (the actual paper-work is not before us), but that is not clearly so. By an AIT decision dated 20 July 2007 IJ Parkes dismissed her appeal. He found that MA was of the Bajuni clan, but said –

“Either the Appellant is a Kenyan Bajuni or she is a Somalian Bajuni from one of the islands who has lived for [m]any years in Kenya. I accept that the Appellant is a Bajuni but I do not accept that she is from Somalia…For the reasons given I do not accept that the Appellant is from Somalia.”

On that basis, IJ Parkes dismissed both her asylum and her human rights (humanitarian protection) appeals. IJ Parkes plainly considered that the one fell with the other. Indeed he only mentioned the refusal notice dated 10 May 2007, and there is no sign that he was asked to consider any ramifications of the decisions dated 25 May 2007.

4

MA then sought and obtained reconsideration of the determination of IJ Parkes. The grounds in support of her reconsideration application raised the issue that as a lone female with a young child her article 3 (human rights) appeal ought to have been independently considered and allowed and did not flow from the rejection of her asylum appeal: since it was now accepted that she was from the minority clan Bajuni, she would be at risk on return to Somalia.

5

By a first stage reconsideration determination dated 29 January 2008 SIJ Allen upheld the determination of IJ Parkes as containing no error of law but reaching findings of fact to which he was entitled to come on the evidence before him. SIJ Allen concluded:

“…he did not accept that the appellant is a Somalian Bajuni. As Mr Smart [the HOPO] pointed out, in the light of that finding, the fact that the Immigration Judge thought that the appellant is a Bajuni and most likely from Kenya, does not place her at risk on return to Somalia since the Secretary of State will have to rethink removal in the light of the Immigration Judge's conclusions.”

It is not entirely clear how the argument proceeded before SIJ Allen with relation to the decision of 25 May 2007 to remove MA, nor exactly what kind, if any, of assurance was given on behalf of the Secretary of State about not returning her to Somalia, but at least SIJ Allen began with a reference to that decision in his first paragraph.

6

On this appeal, Mr Manjit Gill QC who appeared for the first time on behalf of MA, has taken two principal grounds (and has abandoned a third ground relating to burden of proof). The first ground is that IJ Parkes (and therefore SIJ Allen in turn) had erred in law in assessing MA's nationality in that he had given inadequate reasons and/or had come to an irrational conclusion. The second ground is that MA was entitled to a clear decision that return of her to Somalia would have been in breach of her human rights and that IJ Parkes and SIJ Allen ought not to have rested content with the knowledge that the Secretary of State would now have to think again about removing her to Somalia. The first ground is relatively straightforward (and we did not need to call on Mr Jonathan Auburn who appeared for the Secretary of State); but the second ground raised intricate questions about the status under the Nationality, Immigration and Asylum Act 2002 of a decision to remove which proposed a return to a possibly unsafe country albeit not the country from which an appellant had come and not the country to which the Secretary of State now intended to remove the appellant in the light of the AIT appeal determination. This was despite the fact that it was common ground that the decision to remove did not amount to removal directions.

The facts relating to ground one and MA's nationality

7

MA's account of her life and her flight to this country was as follows. She was born in Koyama in Somalia in 1980 and was of the Bajuni minority clan. Her father was a fisherman. Her mother had disappeared when the 2004 Boxing Day tsunami reached Somalia. She accepted that she was uneducated and “have never attended a school”. Ever since 1991, when civil war began in Somalia, the majority clan which she referred to as the Madarood (usually referred to as the Darood) had oppressed her family and her clan. In 1992 large numbers of her clan left Koyama for a United Nations displaced persons camp (in Kenya), but her family stayed behind because her mother was ill at the time. They would often be raided by Madarood soldiers. One day the soldiers torched their house and she suffered burns; and her father was taken away and only returned two weeks later on the verge of death (but he survived). Her father was forced to fish for the Madarood without payment. In 1998 the UN camp was closed and everybody returned, but this made things worse as they brought food and money with them and thus attracted more attention from the Madarood. In that year the Madarood came to their house again and raped her and her mother. She became pregnant but miscarried after three months. In 2002 the Madarood returned and stole her father's and brother's two boats. In 2004 they returned again and she was raped for the second time, and her brother died of his injuries. As a result of that second rape she gave birth to her daughter in 2005.

8

In 2006 things got still worse: the Madarood planned to set up camp in their area and so tried to drive the Bajuni out by looting and pillaging, raping women and kidnapping young boys to turn into soldiers. Her father said that “enough was enough” and that she needed to escape with her daughter. He was helped to contact an agent. He had to sell “another boat” to pay him, but she did not know how much he paid. All this took time. She left Koyama on 11 March 2007, first by boat for Kismayo on the mainland, and then by bus to Addis Ababa. She arrived with the agent by plane in the UK on 13 March 2007. She did not claim asylum at the airport because she was under the control of the agent, and she was put in a car and taken to Liverpool. Apparently she was in the car for more than 4 hours.

9

At her original screening interview she said that she was able to speak Kaswahili and Kabajuni, but not Somali, nor English which she said she neither spoke nor understood. The interview was conducted in Kabajuni, but at a certain point she was answering questions in English, and it was put to her that her English was quite good, and she was warned about answering in English. Unfortunately, we have not been provided with the record of her screening interview which was before both IJ Parkes and SIJ Allen. In her second witness statement she was to say that she was taught some English “when I was young” by her mother; and that the agent had also told her “quick words”, such as when people ask “Are...

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