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

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.