UK - Court of Appeal, 23 April 2010, HH (Somalia) & Others v Secretary of State for the Home Department [2010] EWCA Civ 426

Country of Decision:
Country of Applicant:
Date of Decision:
23-04-2010
Citation:
[2010] EWCA Civ 426
Additional Citation:
C5/2008/1011, C5/2009/0968, C4/2009/1173, C5/2009/2017
Court Name:
Court of Appeal
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Headnote: 

In this case the Court applied the CJEU’s decision in Elgafaji and the UK Court of Appeal’s decision in QD and AH (see separate summary on EDAL) and considered whether UK Immigration Tribunals had jurisdiction to consider Art 15 (c) in cases where removal directions had not been set. The specific issue concerned the risk of indiscriminate violence en route from Mogadishu to a safe area. It further considered and made important obiter comments on the ambit of Art 15 (c).

Facts: 

The four Somali applicants’ cases had been selected to reflect a wide range of facts and situations requiring guidance. HH, a female applicant, was convicted of an immigration offence and her deportation ordered. She appealed claiming to be a member of the Ashraf minority clan. The tribunal rejected her evidence and found that she was from a majority clan from Mogadishu and that removal would not breach Art 3 of the European Convention on Human Rights (ECHR) (Art 15 (b) ) and separately 15 (c) of the Qualification Directive). Before the Court of Appeal the issue was narrowed to 15(c) only.

The male, AM’s case, concerned whether the Court should take into account the risks he would face travelling from Mogadishu to his home area Jowhar, where he could expect to be safe. The Secretary of State had not set removal directions and argued relying on GH (Iraq) v Secretary of State for the Home Department [2005] EWCA 1182 that Immigration Tribunals had no jurisdiction to consider the possible risk which an applicant would face en route to his home or place of safety. 

J, a female, who claimed to be from a minority clan had also been disbelieved, would have had to travel the same road as AM to reach safety 150km north of Mogadishu. She had made a fresh claim (further submissions for asylum) which had been rejected as a fresh claim in the Administrative Court. Removal directions had not been set in her case.

MA, a male, had been granted exceptional leave to remain in the UK. During the first period of his leave to remain he was convicted of a serious sexual assault on a child and sentenced to 8 years imprisonment. There followed attempts to deport him countered by representations and a fresh claim that deportation would breach Art 3 of the ECHR. Before the Court of Appeal the undisputed facts were that MA was from the Isaaq clan and that he was from Mogadishu and his parents were from Hargeisa. There was expert evidence that the Isaaq clan would not be able to provide protection in Mogadishu for a clan member who, like the applicant, had no long term connections with the city. The issue for the Court was whether the Tribunal had, following GM & Ors v Secretary of State for the Home Department (Eritrea) [2008] EWCA Civ 833, attached too much weight on the fact that the applicant had lied and too little on other relevant evidence, notably that the applicant had spent the best part of the previous 15 years in detention in the UK.

Decision & Reasoning: 

The Court confirmed that where the route and manner of return were known or could be implied then Immigration Tribunals must consider whether the applicant would be at risk if returned by that route. The risk of a breach of Art 15 (c) had to be assessed following Elgafaji v Staatssecretaris van Justitie (C-465/07) and QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620

In HH’s case the Court found that the Tribunal, not having Elgafaji and QD to guide it, had erred by equating Art 15 (c) with Art 3 of the ECHR, requiring that the applicant differentiate herself from the rest of the population. However, when the Court considered the evidence which had been before the Tribunal which indicated that at the time of decision the violence in Mogadishu had temporarily abated, it concluded that the error was not material and so HH’s appeal was bound to fail.

In AM’s case the Court rejected the argument that there was no jurisdiction to consider protection needs when removal directions had not been set, noting that the Court in GM (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 833 had not excluded the possibility of jurisdiction where the Secretary of State was committed to a particular route and method. In these cases the only method of removal was by air to Mogadishu airport and the only route for both AM and J was the road north from Mogadishu. The Tribunal was wrong in these circumstances to decline jurisdiction. Fuller reasons referencing Art 15(c) were given in relation to J. Because the question of the availability and efficacy of armed escorts remained unexamined, the Court decided to allow the appeal to the extent that it was remitted to the Tribunal to apply the law as established in Elgafaji and QD.

J’s case had reached the Court by a different route from AM’s, but once it was accepted that return would be to Mogadishu then the question of the dangers or risks facing the applicant as she tried to make her way home gave rise to matters relevant to a fresh claim. Both the Secretary of State and the Judge had been wrong to refuse to accept the representations as a fresh claim. It was established law that the final success of the fresh claim was not in issue but whether there was a realistic prospect of success. The appeal was allowed on that basis but the Court went on to make obiter comments about the Qualification Directive which are summarised below.

In considering MA’s appeal, the Court took some time to consider the decision in GM (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 833, a decision which has influenced the Tribunal’s fact-finding in many cases where the applicant has been shown to be untruthful. The Court analysed the reasoning in GM and at paragraph 100 affirmed the principle, not disputed in GM, that “ A court is under a duty to vindicate a good asylum claim notwithstanding that the appellant may have lied or acted in bad faith.”  In MA’s case the Tribunal had found that he had not told the truth, but had erroneously gone on to find that the lies prevented full and proper inquiries and consequently the Tribunal could not make findings. Had they followed GM they would have asked if there was independent evidence relevant to the assessment of risk and in this case there was the undisputed evidence that he was from a minority clan in Mogadishu and had not been there for 15 years.

If there was sufficient evidence to suggest that there was a risk in GM’s case of persecution or in MA’s case of Art 3 breaches, then the burden of proof shifted to the Secretary of State.

The Court accepted that on the evidence before the Tribunal, and following the country guidance, the Tribunal would have found that MA was plainly at risk of treatment in breach of Art 3 and his deportation would be unlawful.

Outcome: 

The Court dismissed HH’s appeal.
The appeals of AM, J and MA were upheld.

Subsequent Proceedings : 

AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia v. Secretary of State for the Home Department, CG [2011] UKUT 00445 (IAC)

Observations/Comments: 

Many of the domestic authorities relied on were promulgated before the Qualification and Asylum Procedures Directives came into force. J’s counsel submitted that immigration decisions would have to specify either a safe route and route of return or at least a point of return from which safety could be assessed. It was not necessary to determine issues for the instant appeals but the Court did give a tentative view in paragraphs 70-84.

The Court took the view that the Qualification and Asylum Procedure Directives were intended to require the member states to make decisions on entitlement within a reasonable time. Postponement of consideration of the safety of return “would effectively be to postpone the decision until the cessation provisions have come into play”.

“Technical obstacles to return” in the Court’s tentative view are probably confined to administrative difficulties and the fact that they are excluded from consideration suggested that issues of safety, which are central to the Qualification Directive should be considered by those making decisions on entitlement to protection, the Secretary of State for the Home Department and if the matter is first raised at appeal, by the relevant Court.

Case Law Cited: 

UK - AA (Zimbabwe) CG [2006] UKIAT 0061

UK - AA (Zimbabwe) CG [2005] UKIAT 00144

UK - GH v Secretary of State for the Home Department [2005] EWCA Civ 1182

UK - HS (Zimbabwe) CG [2007] UKIAT 0094

UK - NM and others (Somalia) CG [2005] UKIAT 00076