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

JurisdictionEngland & Wales
CourtSupreme Court
Judgment Date24 Nov 2010
Neutral Citation[2010] UKSC 49

[2010] UKSC 49


Michaelmas Term

On appeal from: 2010 EWCA Civ 426


Lord Phillips, President

Lord Walker

Lady Hale

Lord Mance

Sir John Dyson, SCJ

MA (Somalia)
Secretary of State for the Home Department


Elisabeth Laing QC

Deok Joo Rhee

(Instructed by Treasury Solicitor)


Richard Drabble QC

Graham Denholm

(Instructed by CLC Solicitors)

SIR JOHN DYSON SCJ (delivering the judgment of the court)


The issues raised by this appeal are whether the Court of Appeal (i) adopted the wrong approach to the assessment of the impact of MA's lies to the Asylum and Immigration Tribunal ("AIT") on his claim for international protection on the basis of Article 3 of the European Convention on Human Rights ("ECHR"); and (ii) impermissibly interfered with the assessment of the facts made by the AIT, including the impact of MA's lies on a relevant aspect of his claim. As will become apparent, there was little debate or disagreement between the parties to this appeal about the questions raised by the first issue, although they are unquestionably of general importance. The second issue raises the question of how far it is legitimate for an appeal court to interfere with the assessment of facts made by a specialist tribunal on the grounds of error of law.

The facts


MA is a citizen of Somalia. He is a member of the Isaaq clan, sub-clan Habr Yunis. He entered the United Kingdom illegally on 7 May 1995 and applied for asylum on 24 May 1995. That application was refused on 14 February 1996, but he was granted exceptional leave to remain until February 1997. He was then granted further leave until 14 February 2000.


On 23 July 1998, he was convicted of rape and indecency with a child. He was sentenced to eight years' imprisonment. On 21 May 2002 the Secretary of State for the Home Department ("the Secretary of State") served him with a notice of intention to make a deportation order.


MA appealed against the notice on human rights grounds. The Secretary of State decided (under the Immigration Rules) that the grounds of appeal amounted to a "fresh claim" for asylum; but refused the claim in a letter dated 26 June 2003. MA appealed. His appeal was dismissed by an adjudicator on 25 November 2003. On 5 April 2004, the Secretary of State made a deportation order, which was served on MA on 19 April 2004. On 4 March 2005, MA's solicitors made further representations to the Secretary of State, who decided that these did not amount to a "fresh claim". Removal directions were set for 29 November 2006, but MA applied for judicial review, raising issues under Article 3 of the ECHR.


Following further submissions, on 1 February 2007 the Secretary of State accepted that MA had made a "fresh claim" for asylum, but refused the claim. MA appealed again.


In a determination promulgated on 19 April 2007, the AIT allowed his appeal. They did so on human rights grounds only, as they held that the appellant was precluded by section 72 of the Nationality, Immigration and Asylum Act 2002 from claiming protection under the Refugee Convention, and, by paragraph 339D of the Immigration Rules, from claiming humanitarian protection.


The AIT accepted the concession made by the Secretary of State that MA was a member of the Isaaq clan. They also found that he was from Mogadishu, and that his parents were from Hargeisa in Somaliland. After considering evidence about the situation of the Isaaq clan in Mogadishu, they held that the Isaaq in Mogadishu were in the position of a minority clan who did not have protection, and that he would be at a real risk of physical violence which crossed the Article 3 threshold.


The Secretary of State applied for an order requiring the AIT to reconsider their decision. An order for reconsideration was made on 10 May 2007. At the first-stage reconsideration hearing on 28 February 2008, Senior Immigration Judge Spencer ordered a second-stage hearing at which the appeal would be determined afresh. He further ordered that the limited positive credibility findings made by the AIT about MA and their decision to prefer the evidence of Mr Höhne (MA's expert) to that relied on by the Secretary of State should be preserved.


MA's appeal was re-heard on 18 December 2008, and in a determination promulgated on 1 July 2009 the AIT dismissed the appeal. His application for permission to appeal to the Court of Appeal was granted by Sedley LJ on 18 December 2009. In a judgment delivered on 23 April 2010 [2010] EWCA Civ 426, the Court of Appeal allowed the appeal.


It will be necessary to examine parts of the AIT's determination of 1 July 2009 and the decision of the Court of Appeal in some detail. In short, the Court of Appeal held that, although the AIT directed themselves "impeccably", they did not apply that direction "properly" and they failed to take account of a material factor in reaching their conclusion.

The relevant country guidance decision of the AIT


The relevant country guidance for Somalia is to be found in the AIT decision of AM and AM (armed conflict: risk categories) (Somalia) [2008] UKAIT 00091. At para 178, the AIT said:

"On the present evidence we consider that Mogadishu is no longer safe as a place to live for the great majority of its citizens. We do not rule out that notwithstanding the above there may be certain individuals who on the facts may be considered to be able to live safely in the city, for example if they are likely to have close connections with powerful actors in Mogadishu, such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs. However, barring cases of this kind, we consider that in the case of persons found to come from Mogadishu who are returnees from the UK, they would face on return to live there a real risk of persecution or serious harm and it is reasonably likely, if they tried staying there, that they would soon be forced to leave or that they would decide not to try and live there in the first place."

The Standard of Proof


It was not contended in the Court of Appeal or in this court that the AIT had applied the wrong standard of proof. It is well established that a breach of Article 3 of the ECHR is proved "where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or inhuman or degrading treatment" ( Vilvarajah v UK (1991) 14 EHRR 248 para 103) (emphasis added). There was, however, some brief discussion before us on the question whether it is appropriate to apply the civil test of the balance of probabilities to some of the elements of what has to be proved in an Article 3 claim. This is a difficult topic which has occupied the attention of our courts in recent years in the analogous context of extradition and Refugee Convention cases.


It was authoritatively decided by the House of Lords in R v Secretary of State for the Home Department, ex p Sivakumaran [1988] AC 958 that in order for a fear to be well-founded for the purposes of the Refugee Convention, there must be a reasonable degree of likelihood that the applicant will be persecuted on return. It will be seen that this test is expressed in slightly different terms from the Article 3 test. But no argument was addressed to this court to suggest that there is a material difference between the two. Although it is not necessary for the determination of this appeal to decide whether there is any difference, we are inclined to the view that there is no practical difference between them. It would add considerably to the burdens of hard-pressed immigration judges, who are often called upon to decide claims based both on the Refugee Convention and the ECHR at the same time, if they were required to apply slightly different standards of proof to the same facts when considering the two claims.


The question that was touched on in argument is whether the same standard of proof should be applied in relation to the proof of past or existing facts as in relation to the assessment of future risk. In the extradition context, in Fernandez v Government of Singapore [1971] 1 WLR 987, the House of Lords had to interpret section 4(1)(c) of the Fugitive Offenders Act 1967, which entitled the applicant to avail himself of a prohibition on return if he "might" be restricted or detained if extradited. Lord Diplock said that the "balance of probabilities" was a convenient phrase to use in relation to the existence of facts; but was inappropriate when applied not to ascertaining what had already happened, but to prophesying what, if it happened at all, could only happen in the future (994A). In the latter situation, Lord Diplock found that a lesser degree of likelihood was sufficient (994G).


Prior to Sivakumaran, it seems that the general view in extradition and asylum cases was that past and existing facts should be determined according to the civil standard of proof (ie on the balance of probabilities); and the lower test propounded in Fernandez applied to assessing the risk of adverse treatment on the basis of those facts. An example of this approach is to be found in R v Immigration Appeal Tribunal, exp Jonah [1985] Imm AR 7 (Nolan J).


Following Sivakumaran, it was unclear whether the "real risk/real possibility" test should be applied to the proof of past and existing facts. In Kaja v Secretary of State for the Home Department [1995] Imm AR 1 (IAT), the majority rejected a two-stage test of a determination of past and present facts on the balance of probabilities and an assessment of real risk in relation to future possibilities. They held that the test of reasonable degree of likelihood should be applied to all aspects of the determination. Following Kaja, the practice of the IAT was to apply the "real possibility" test to past and present facts. In Horvath v...

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