Upper Tribunal (Immigration and asylum chamber), 2013-08-27, AA/02964/2011
| Jurisdiction | UK Non-devolved |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 27 August 2013 |
| Published date | 30 October 2013 |
| Status | Unreported |
| Appeal Number | AA/02964/2011 |
Appeal Number: AA/02964/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02964/2011
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 25 March 2013 |
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Prepared on 31 July 2013 |
………………………………… |
Before
UPPER TRIBUNAL JUDGE CRAIG
Between
MS Z A M
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr P Jorro, Counsel, instructed by Wilson Solicitors LLP
For the Respondent: Mr I Jarvis, Home Office Presenting Officer
DETERMINATION AND REASONS
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The chronology of this appeal is set out in the decision which I gave following a hearing on 3 September 2012, and this determination should be read in conjunction with that decision. As I set out in that decision, this appellant, who originally claimed asylum on 2 March 2009, claims to be a Somalia national, and claims also that she was born on 2 February 1992. The respondent does not accept that she is a Somali national or that she is as young as she claims.
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Following the hearing on 3 September 2012, as recorded in my Decision, I found that the appellant’s age was older than she claimed and that, for reasons set out within that decision, adverse credibility findings which had previously been made in respect of this appellant by Immigration Judge Murray, must be retained, but that the Tribunal would now need to come to a fresh decision on whether it was safe, in light of the adverse credibility findings, but also in light of the then relatively new country guidance decision in AMM, to return this appellant either to Kenya (where the respondent believed she was from) or Somalia.
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At a subsequent directions hearing on 23 January 2013, I directed that the appeal would proceed on the basis that the adverse credibility findings previously made should stand and also that the respondent should file a skeleton argument setting out (i) whether it was intended to return the appellant to Kenya and if so, the basis upon which it is said she could be returned there, and (in answer to the appellant's submissions previously made) that she would be safe there; and (ii) the respondent's answer to the appellant's submissions that she would not be safe on return to Somalia.
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Following these directions, Mr Jarvis prepared and submitted detailed written submissions to the Tribunal, dated 19 March 2013. Contained within these submissions are detailed arguments as to why this appellant could now safely be returned to Somalia, including arguments as to why the country guidance given in AMM should no longer apply. However, these submissions are made against the assertion, at paragraph 2, that “the [respondent] argues that the Sprakab evidence supplied in this appeal is compelling evidence (to the required standard) to show that the A is in fact from Kenya”. The respondent’s submissions as to whether or not it would theoretically be safe to return this appellant to Somalia have been made only “because of the A’s own claim (disputed) that she is from Somalia” (at para 81).
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Just before the hearing, further submissions were received on behalf of the appellant also.
The Hearing
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I heard submissions on behalf of both parties, which I recorded contemporaneously. My notes are contained in the Record of Proceedings. Much of the argument concerned whether or not the country guidance given by this Tribunal in AMM could still be relied upon. On behalf of the respondent, Mr Jarvis submitted that, for a number of reasons, it could not, while Mr Jorro, on behalf of the appellant, submitted that Mr Jarvis’s arguments were not well-founded. I have had regard to everything which was said to me during the hearing as well as to all the documents contained within the file, whether or not they they are referred to specifically below.
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Essentially, with regard to this appellant, the respondent's primary submission is that she is from Kenya and can be safely returned there. Alternatively, if she is from southern Somalia, then when one takes into account what this Tribunal said in AMM, relying on what the Supreme Court had earlier found in MA (Somalia) this appellant had failed to make out a claim that she would be returning without any clan or family links or that she would have no support from others. This appellant was continuing to maintain that she was from Somalia and must be returned to Mogadishu, whereas the evidence was that this was clearly not true. The appellant continues to claim that she has lived in one area of Mogadishu continuously, even though she has been disbelieved.
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On behalf of the appellant, Mr Jorrro accepted that it had been found that the appellant is not Reer Hamar and that he was bound by this finding. She would not be entitled to refugee status, but she would be entitled to Article 3 protection. He relied in particular on the findings of the Tribunal in AMM at paragraph 594, which were as follows:
“Despite the withdrawal in early August 2011 of Al-Shabab conventional forces from at least most of Mogadishu, there remains in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad. Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle class professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. The significance of this category should not, however, be overstated and, in particular, is not automatically to be assumed to exist, merely because a person has told lies.”
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Mr Jorro relied on what was said in the Court of Appeal by Stanley Burnton LJ in SG (Iraq) [2011] EWHC 2428 (Admin) at paragraph 47 of his judgment (with which the other members of the court agreed):
“... Decision makers and Tribunal judges are required to take country guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are produced justifying there not doing so.”
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Although it had been argued on behalf of the respondent that the situation had improved in Somalia since the determination in AMM had been promulgated, the respondent had not given cogent reasons for so submitting. Evidence adduced on behalf of the appellant showed that the position was not as clear cut as Mr Jarvis was suggesting. Much of the evidence was disputed. Because there was an ambiguity in the evidence, this failed the test of “cogent evidence”.
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With regard to the Kenya issue, the respondent's case depended on the first Sprakab report, which was made following analysis of a seventeen minute recording which was said in the report to show that the appellant spoke a dialect of Somalia spoken only in Kenya. On the other hand, Mr Sheikh, who spoke with her for an afternoon and is a qualified linguistic, says that she is from southern Somalia. Both De Taal and Mr Sheikh say the Sprakab report does not make sense. The issue here was not whether there was a reasonable likelihood that she was from Kenya, but whether there was a reasonable likelihood that she was from southern Somalia. If the Tribunal were to make a finding that there was a reasonable likelihood that she was from southern Somalia, then she would be entitled to humanitarian protection under Article 3. The respondent does not have the freedom to say that she is from anywhere; they must rely on the Sprakab report.
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It should be noted that the writer of the Sprakab report has a law degree, but Mr Sheikh who interviewed the appellant and De Taal are in disagreement with Sprakab. So the respondent's case that the appellant can be returned to Kenya is based on very flimsy grounds.
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Although Mr Jorro accepted that in certain circumstances it could be possible for an applicant to be returned to more than one country, insofar as she is either from one country or the other, this appellant had discharged the burden on her by showing that it was reasonably likely that she was from Somalia. It was the appellant's case that the Sprakab report was seriously flawed and that she would be at real risk on return to southern Somalia.
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Even if the appellant was returned to Kenya, which was very unlikely, she would be at real risk of refoulement or alternatively, would be at risk within one of the IDP camps in Kenya. This was set out in more detail in paragraph 20 of the new skeleton argument submitted for this hearing.
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In reply, on behalf of the respondent, Mr Jarvis submitted that Mr Jorro had had to gloss over the evidence. With regard to the situation in Somalia, this Tribunal had to scrutinise properly the evidence which had been put before it in order to look at what are nuanced legal and evidential approaches to...
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