Mohamed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER,LORD JUSTICE HUGHES,LORD JUSTICE RIX |
| Judgment Date | 17 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1342 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 2006 |
| Docket Number | Case No: C5/2005/1726/AITRF, C5/2005/1726(A) , C5/2005/2239, C5/2005/2384 |
[2006] EWCA Civ 1342
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Rix
The Right Honourable Lord Justice Hooper and
The Right Honourable Lord Justice Hughes
Case No: C5/2005/1726/AITRF, C5/2005/1726(A) , C5/2005/2239, C5/2005/2384
Frances Webber and Ronan Toal for the Appellant Gedow
Frances Webber and Femi Omere for the Appellant MohamedBecket Bedford for the appellant Abdulkadir
Robert Jay QC and Kristina Stern (instructed by Treasury Solicitor) for the Respondent
We heard together one appeal and two applications for permission to appeal. The appellants, all Somalian, have been disbelieved by immigration judges in their claims that they are members of minority clans in Somalia. Those found to be members of minority clans have a significantly better chance of their Article 3 claims succeeding than members of majority clans. Having being disbelieved, the appellants were held to be members of majority clans.
It is submitted that the appellants, though being members of majority clans, face a real risk of suffering inhuman or degrading treatment within the meaning of Article 3 of the European Convention of Human Rights at a Mogadishu airport following their arrival at the airport or on the way home into Mogadishu. The journey, as I understand it, should not take very long. It should certainly not take anywhere near as long as the two days over which the appeal and the applications for permission to appeal were heard.
This case has an air of unreality about it. The Adjudicator, the AIT and this Court are looking at the circumstances which were prevailing in Mogadishu at the time of the decision of the AIT in July of 2005. Since then there have been, according to the media, significant improvements for those who live in Mogadishu. Nonetheless we have to decide this case on the basis of the situation as found in July 2005.
The air of unreality about this case relates also to the issue of the airport. The only way in practice for returning a failed asylum seeker to Somalia is, so we were told, by air. The international airport at Mogadishu was not open in July 2005 and remains closed. In 2005 there were, we were told, a small number of landing strips controlled by various clans or warlords. We were told during the hearing that the last enforced departure for Somalia was in May 2004, the returnee having been taken to the international airport at Mogadishu. The idea of a plane containing a returning failed asylum seeker finding some airstrip in Mogadishu and dropping him or her off seems to me to be very far fetched.
We shall deal with each appellant in turn, starting with Abdulkadir Abukar Gedow.
Abdulkadir Abukar Gedow
Mr Gedow appeals against a decision of the Asylum and Immigration Tribunal ("AIT") . In July 2005 the AIT concluded (on a reconsideration of the determination of an Adjudicator) that the appellant had not made out his case that "there is a real risk that on return to Mogadishu he will be subjected to torture or inhuman or degrading treatment in breach of his Article 3 rights". The AIT wrote:
"We find that the appellant has failed to establish that he, on return to Somalia, is at real risk of any breach of his Article 3 rights. Though we find an error of law [in the determination of the Adjudicator], we substitute our own decision to dismiss this appeal on human rights grounds."
The appellant had claimed that he was a member of a minority clan. The appellant was comprehensibly disbelieved by the AIT. The AIT wrote:
"Since he, in collusion with three witnesses, manufactured a false case and gave misleading evidence as to his true clan membership. It follows that the Adjudicator was unable to find which majority clan he belonged to or his normal home area". (Underlining added)
There is no challenge to the finding that the appellant had presented a false and misleading case.
It is not disputed by the appellant that if he returns to Mogadishu (where he says that he was living before he left Somalia) he cannot show that, after his arrival at his home (or new home) , there is a real risk of suffering inhuman or degrading treatment within the meaning of Article 3 of the European Convention of Human Rights. His claim is, and only is, that there is a real risk that he will suffer that treatment upon arrival at an airport in Mogadishu or upon his journey from that airport to his home.
The document which gave the appellant the right to appeal to an Adjudicator is a letter dated 22 January 2004 headed "Notice of Decision". It is headed:
"Decision to remove an illegal entrant/other immigration offender or a family member of such a person – asylum/human rights claim refused."
The letter states that a decision has been taken to remove the appellant from the United Kingdom and continues:
"You have made an asylum/human rights claim. The Secretary of State has decided to refuse your claim for asylum and/or human rights for the reason stated on the attached notice."
The letter then states under the heading "Removal Directions":
"Directions will be given for your removal from the United Kingdom to Somalia."
No such removal directions have so far been given and it is accepted that such a direction must be given before the appellant's return to Somalia could be effected. It is also accepted that such a removal direction may, as a matter of law, be open to challenge before a court or tribunal.
Both the Human Rights challenge and the Refugee Convention challenge stemmed from the same letter.
In cases involving Somalia it would be unrealistic for the Secretary of State to make a firm plan for the appellant's removal to Somalia as long ago as 22 January 2004. A week is not only a long time in politics but is also a long time in the life of a country as sad and war torn as Somalia. It follows, so it seems to me, that a tribunal or court asked to resolve issues under the Refugee Convention or under the Human Rights Convention will have to approach the matter on the basis that precise directions will only be given after the appellate routes have been exhausted.
Miss Webber's first challenge is to the underlined words "or his normal home area" in the passage cited in paragraph 7 above.
She submits that there was no issue that the appellant had lived in Mogadishu and that, if he were to be returned, it would be to Mogadishu he would go. Her forensic reason for showing that the appellant came from Mogadishu was that Mogadishu, so she submits, was in 2005 a more dangerous place than other parts of Somalia (a proposition which I personally but instinctively found surprising) .
She points to paragraph 9.3(1) of the Adjudicator's Determination and Reasons in which he states:
"The respondent has not, of course, disputed that he is a Somali national or indeed, as far as I can see, that he comes from Mogadishu."
Mr Jay QC sought in his skeleton argument to uphold what was said by the AIT about the appellant's "normal home area". Mr Jay submitted that since the appellant had been disbelieved it was not possible to decide where his home is. Mr Jay may logically be right on the facts of this case and there is support for his argument in paragraph 26 of the decision of the Immigration Appeal Tribunal ("IAT") dated 14 February 1995 in the Country Guidance case NM and Others [2005] UKIAT 00076. (As to the status of a Country Guidance decision see e.g. R (Iran) and others v. SSHD [2005] EWCA Civ 982; [2005] Imm AR 535.) On the other hand it is possible to envisage a case where the appellant is disbelieved about his clan status but nonetheless a conclusion can be reached about his home.
In my view we do not need to resolve this issue. There is no suggestion that the appellant would be returned to anywhere other than Mogadishu and Ms Webber tells us that if he is to return then he will go and live in Mogadishu. I shall proceed on that assumption.
Both Ms Webber and Mr Jay agree that central to the issues which we have had to resolve are paragraphs 122 – 123 of NM. Those paragraphs read as follows:
"122. A majority clan can be characterised as one which has its own militia. The strongly clan and family based nature of Somali society makes it reasonably likely, though not certain, that a militia escort could sufficiently protect a returnee from Mogadishu through the road blocks and en route banditry, to the clan home area. This would have to be pre-arranged. Any unwillingness on the part of a claimant to make such arrangements is irrelevant. The telephone connections to Mogadishu are good. We do not know anything of their availability to other towns. The mere unannounced deposit, even of a majority clan member, and especially a female, at Mogadishu airport would be likely to put them at a real risk, in the absence of special factors.
123. There are problems with those whose case has been so disbelieved that it is not known what their clan or place of origin is. It is difficult to see that such a person could succeed; he or she would be a majority clan member who was in effect declining to demonstrate, even to the low standard of proof that they were at risk on return because unable to arrange for clan militia escorts from Mogadishu or wherever else they might be returned to."
Ms Webber relied on paragraph 122 but...
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