Upper Tribunal (Immigration and asylum chamber), 2004-06-04, [2004] UKIAT 127 (FK (Shekhal Gandhershe))
| Jurisdiction | UK Non-devolved |
| Judge | Mr H J E Latter, M E A Innes |
| Status | Reported |
| Date | 04 June 2004 |
| Published date | 21 February 2005 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 15 April 2004 |
| Subject Matter | Shekhal Gandhershe |
| Appeal Number | [2004] UKIAT 127 |
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Heard at: Field House |
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FK (Shekhal Gandhershe) Somalia CG [2004] UKIAT 00127 |
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On: 15 April 2004 Prepared 15 April 2004 |
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IMMIGRATION APPEAL TRIBUNAL
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Date Determination notified:
4 June 2004 |
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Before: |
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Mr H J E Latter (Vice President) Mr M E A Innes
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APPELLANT |
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and |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
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RESPONDENT |
Representation:
For the appellant: Miss I Sibic of Counsel.
For the respondent: Mr M Blundell, Home Office Presenting Officer.
DETERMINATION AND REASONS
1. The appellant, a citizen of Somalia, appeals against the determination of an Adjudicator, Mr R J Manuell, who dismissed his appeal against the decision made on 20 August 2003 giving removal directions following the refusal of his claim for asylum.
2. The appellant arrived in the United Kingdom on 16 October 2001 using a passport to which he was not entitled. He applied for asylum on 26 October 2001. On 9 January 2002 he was interviewed about his claim to be from Somalia. He said that he was a member of the Shekhal clan and the Gandhershe sub-clan. He submitted a statement of evidence form with a further written statement dated 21 January 2002. He was interviewed about his claim on 21 March 2002. In the reasons for refusal letter dated 6 August 2003 the Secretary of State indicated that it was his view that the appellant would not be subjected to persecution from the USC militia as the Shekhal were not a minority clan but were associated with the Hawiye. He also doubted the credibility of the account given by the appellant of the events in Somalia which had led him to leave. It was the Secretary of State's view that the appellant did not qualify for asylum or humanitarian protection.
3. The Adjudicator heard the appeal against this decision on 11 November 2003. The Adjudicator summarised the appellant's written claim as follows. He was from the Gandhershe clan, a sub-clan of the Shekhal tribe which was an ethnic minority. He had been attacked by members of majority clans on three occasions. In 1994 members of the Hawiye put a gun to his head and demanded money. The second incident was in 1999 and the third time he was attacked was in 2001. On that occasion he had been detained in a hole in the ground of an old house. He had managed to escape during a gun battle between two factions. Some days later his wife was raped. He could not continue living in that manner and decided to flee to Kenya from Somalia. He could not remain in Kenya because he did not have the necessary documents granting him permission to live there. His wife and family had fled to Ethiopia.
4. In his oral evidence before the Adjudicator the appellant was asked to clarify the circumstances surrounding the rape of his wife. He said that he and his wife were abducted on the same day. He was picked up from his shop and his wife was picked up from their house. He had been asked for money. He had forgotten lots of things and sometimes could not say what had happened to him the previous day. He could not recall each and every incident. He had made a mistake in his second witness statement. His wife had been raped in 2001. He was asked whether he believed that he had been targeted because he was rich or whether he thought there was some other reason. The appellant replied that rich people within the minority clans were targeted because people thought they were unprotected. He had not sought protection from the majority clans because they were the attackers. Although his clan bore the same name as the Shekhal majority clan they were not of the same ethnicity.
5. The Adjudicator commented that the broad outline at least of the appellant's testimony was plausible. The appellant had placed greater emphasis on the clan involvement in his second witness statement. In the Adjudicator's view his knowledge of his own clan was limited. He suggested he had been targeted because he was a wealthy member of a minority clan but it seemed to the Adjudicator that in any lawless environment the “haves” will always be at the mercy of the “have nots” or simply the greedy. In respect of the incident in 2001 it seemed that two factions were at war with one another which was how the appellant had been able to escape. The incident appeared to be no more than random or opportunistic violence.
6. The Adjudicator found that the appellant had suffered the three incidents which he claimed but they were not persecutory incidents based upon his membership of a minority clan. They were instances of lawlessness or of the tide of a civil war. He regarded the appellant's account of his clan membership as vague and substantially embellished. The appellant was the victim of a civil war who first fled to Kenya where he gave no instance of any problem other than lack of documentation who then came to the United Kingdom seeking better living conditions. The October 2003 CIPU Assessment indicated no deterioration in the general situation in Somalia with basic law and order the norm in most locations but with sudden changes possible as was inevitable when no final peace settlement had been agreed and when large numbers of weapons remained in private hands. The Adjudicator was not satisfied that the appellant had proved that he had a well-founded fear of persecution for a Convention reason. He was fortified in those conclusions by the appellant's resort to illegal entry to the United Kingdom and his delay in claiming asylum following his arrival.
7. In the grounds of appeal it is argued that the Adjudicator was wrong to find that the appellant had been the victim of indiscriminate attacks. He had not made a finding that the appellant did not come from the Shekhal tribe when the Secretary of State had been satisfied that he did. The central issue was whether members of the Shekhal tribe were a minority group who risked persecution. Alternatively, it was argued that in the absence of a finding that the appellant did not come from the Shekhal tribe and that he was a member of a majority tribe, the Adjudicator's reasons for concluding that the attacks were indiscriminate were unfounded. As the Secretary of State had not challenged the appellant's tribal membership it was not permissible for the Adjudicator to find against the appellant on that issue.
8. Ms Sibic adopted these grounds in her submissions. The first issue was whether the Adjudicator was entitled to find that the appellant did not belong to the Shekhal clan. She referred the Tribunal to the determination in Mohammed [2002] UKIAT 08403. There was no evidence to contradict the findings in that determination which accepted that the Shekhal Gandhershe was a minority group at risk on return to Somalia and could properly be regarded as among the Benadiri groups. There would be a continuing risk of persecution. The Adjudicator had found that the events described by the appellant had taken place. The Operational Guidance Note for Somalia February 2004 confirmed that there was a continuing risk to minority groups who remained vulnerable.
9. Mr Blundell submitted that the Secretary of State's view was set out in the reasons for refusal letter. It was his contention that the Shekhal were not a minority group. He conceded that he had no further expert evidence to put before the Tribunal to contradict the findings in Mohammed. He submitted that nowhere in the background evidence are the Shekhal or Shekhal Gandhershe classified as Benadiri. The Adjudicator was entitled to conclude that the appellant had not been targeted because of his ethnicity but as a result of the general lawlessness in Somalia.
10. In his determination the Adjudicator said that he regarded the appellant's account of his clan membership as vague and substantially embellished. Ms Sibic argued that in the light of his findings that the broad outline of the appellant's evidence was plausible and that the three incidents described had taken place, there was no proper basis for rejecting the appellant's evidence that he was a member of the Shekhal Gandhershe sub-clan. Mr Blundell conceded that the Secretary of State had never sought to put the...
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