NM and Others (Lone women – Ashraf)
| Jurisdiction | England & Wales |
| Judge | G Risius,Mr Justice Ouseley,Dr H H Storey |
| Judgment Date | 31 March 2005 |
| Neutral Citation | [2005] UKIAT 76 |
| Court | Immigration Appeals Tribunal |
| Date | 31 March 2005 |
[2005] UKIAT 76
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Dr H H Storey (Vice President)
His Honour Judge G Risius CB (Vice President)
For the Appellants: Mr M O'Conner, instructed by Sultan Lloyd Solicitors (1)
Mr M Rana, instructed by Aden & Co Solicitors (2)
Mr Z Ahmed of Asghar& Co (Slough) (3)
For the Respondent: Mr P Deller, Home Office Presenting Officer
NM and Others (Lone women — Ashraf) Somalia CG
We deal in this determination with the appeals of three nationals of Somalia. They were directed to be heard together under Rule 51 of the Immigration and Asylum Appeals (Procedure) Rules 2003 because they raised the common issue of whether the Claimants would face a real risk of serious harm by virtue of being lone women, ie women returning on their own to Somalia. Although only the appeal in respect of the third Claimant was brought by the Secretary of State, we shall refer to each of them as (first, second and third) “Claimants”. This case is reported as country guidance for what it says about this issue, Ashrafs, and the related issue of risk to returnees.
Prior to our hearing of these three appeals, there was a directions hearing. That gave permission for those representing the first Claimant to call Professor I M Lewis to speak to his expert report and identified five main issues – all relating to the issue of risk on return to lone women. Steps were taken to ensure that the parties placed before the Tribunal the latest background country materials as well as reports from experts. In addition to a written report from Professor Lewis, we also had a written report from Dr Virginia Luling dated 25 January 2005 entitled “ Opinion on the Return of Unaccompanied Women to Mogadishu”. We are grateful to those representing the three Claimants for the efforts they made to combine their own researches and deployment of experts. By dint of their endeavours we have been able to approach our deliberations on these appeals in the light of a good range of materials.
We set out in Appendix A the cases which were cited to us.
The principal background materials placed before us are listed at Appendix B. They include the joint Danish, Finnish, Norwegian and British Fact-Finding Mission to Nairobi, Kenya 7–12 January 2004, published 17 March 2004 entitled “ Human Rights and Security in Central and Southern Somalia” which we refer to as the Joint Mission Report, 2004.
Although these three appeals have been heard together for the purpose of enabling the Tribunal to give country guidance, our jurisdiction in respect of them is confined to that of error of law. The determination in each was promulgated after 9 June 2003. Accordingly we cannot have regard to post-promulgation materials in determining the appeals, unless satisfied that the determinations disclose a material error of law: CA [2004] EWCA Civ 1165.
The first Claimant (NM), who is now 29, appeals against the determination of an Adjudicator, Mrs F M Kempton, notified on 23 June 2003, dismissing her appeal on asylum and human rights grounds against a decision to give directions for removal and to refuse to grant asylum. The second Claimant (SS), now aged 19, brings her appeal against the determination of an Adjudicator, Mrs C J Lloyd, notified on 2 August 2004, dismissing her appeal on asylum and human rights grounds against a decision to give directions for removal and to refuse to grant asylum. The third Claimant (LA), who is now 20, defends an appeal brought by the Secretary of State against the determination of an Adjudicator, Mr J C Boyd, notified on 23 September 2004, dismissing her asylum, but allowing her Article 3 human rights, grounds of appeal against a decision to remove her by way of directions, and refusing to grant asylum.
The Adjudicator accepted the core of her account as true. She accepted she was a member of the Ashraf clan, that the Ashraf was a minority clan, and that the whole area of Mogadishu where she lived (Hamar Wayne) had been targeted by the USC and by Hawiye clan militias during the 1990s. There had been four major attacks on the Claimant's family. The last of those, in 1998, left her husband permanently disabled. Despite a lack of specific incidents subsequently, the family was often forced to hide in the forest to avoid further attacks. Some time after 1998 she was divorced when her husband married another woman. Her troubles continued right up until she left the country with her two children on 2 January 2003.
Notwithstanding these findings, the Adjudicator decided to dismiss the appeal. Her first reason was that the CIPU Report of April 2002 made no mention of the Ashraf or Hassan in Mogadishu, but did confirm that small clans were safest where they enjoyed the protection of a dominant clan. At paragraph 27 she stated:
“At paragraph 4.35 it is stated that the small Asharaf [sic] group in Gedo remained aloof from the clan fighting and enjoys a secure position &. According to para 5.3, most Somalis ensure their personal safety by residing in the ‘home areas’ of their clan and this may involve a form of internal displacement for some people in Mogadishu who have had to move to traditional clan areas elsewhere. The appellant referred to living with relatives for a while in Afgoye, and so presumably there are other Ashraf clan members in that rural area, where the appellant could have gone if she was afraid, rather than seeking international protection.”
Her other main reason was set out at para 28 as follows:
“I do not consider that the appellant has a Convention reason and so she has not been persecuted for any such reasons. As a result, she does not come under the protecting umbrella of the Convention. She is the victim, like so many of her countrymen and women of a civil war as discussed in the decision in Adan. As such she is just one of many people who have suffered but who has not been individually targeted due to her ethnic origin. On return, she will be no different from anyone else. There is nothing to single out her circumstances. Given that the Ashraf have in particular been mentioned at 4.35 as enjoying a secure position, I cannot see what difficulty the appellant will have on return. She will have the protection of a clan, which in itself appears to be protected.”
She also considered that the “ catalyst” for the Claimant's decision to flee Somalia was her divorce.
Mr O'Connor relied on two main submissions. Firstly, the Adjudicator was wrong to dismiss the appeal on the basis that the Claimant was not personally targeted. Close family members had been murdered or maimed and the Adjudicator had accepted that the area where she resided was targeted. Secondly, the Adjudicator had erred in failing to consider that as a divorced woman from a minority clan returning alone to Somalia she would be particularly vulnerable to intimidation, physical and sexual violence against which she would receive no protection from any of the majority clans. Having had no contact with her family since arriving in the United Kingdom, she would in all likelihood have to go into a camp for internally displaced people where she would face a serious risk of rape and violence. Even if she were able to contact her family, evidence showed that minority clans are forced to live in desperate conditions of poverty and suffered discrimination because of their minority status.
We find that her decision was legally flawed. Firstly, she erred in her approach to the issue of past persecution. She considered that the Claimant had not experienced persecution because she had not been individually targeted. However, on the basis of her own findings, the absence of individual targeting did not mean that this Claimant had not suffered harm personal to her. She had accepted that majority clan militia had targeted the whole of the Hamar Wayne area where the Claimant lived. She had also accepted that as a result of this targeting, close members of the Claimant's family had been killed or injured. The Claimant herself had only been able to avoid attacks by hiding in the forest. Thus the Claimant was directly and personally affected by targeted acts of violence.
Of greater concern was her approach to current risk. She concluded that because the Claimant had not been personally targeted, there was no real risk of persecution on return. Sometimes that may be a proper deduction. But where the basis of the persecution is tribal or clan, and it would be true for other aspects of ethnicity, the risk on return is much less easy to judge on the basis of an absence of past individual persecution. The risk has to be judged against the prospects of an individual of that ethnicity being persecuted, and the particular personal identity of that individual is likely to be rather less important.
Secondly, the Adjudicator appears to have misconstrued the CIPU materials that were before her. She considered there would not be a prospective risk on return because the April 2002 CIPU Report at para 4.35 mentioned the Ashraf as enjoying a secure position, being protected by a majority clan. That was incorrect. The April 2002 CIPU Report said nothing about the Ashraf. The report she actually made reference to was the October 2002 CIPU report.
The October 2002 CIPU Report does not state that the Ashraf were a clan protected by a majority clan. Paragraph 4.35 is confined to a newly included observation about the Ashraf in one locality only — Gedo — enjoying a secure position; but the source on which it relies for this observation dated from 1997. Elsewhere the October CIPU identified the Benadiri (of whom the Ashraf form a sub-group) as being a “ particularly disadvantaged” minority group and one “ ...
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