Upper Tribunal (Immigration and Asylum Chamber)

Appellant MW

Appellant ZF

Appellant FM

Appellant AF

PART C

SOMALI COUNTRY GUIDANCE CASES

“Male and female members of minority clans from the south will, in general, be at risk of breaches of their Article 3 rights, and will be refugees, in the absence of any evidence that they have a clan or personal patron and the means to access that area of safety without a real risk.  Were such evidence to exist, which at present would be unusual, their return would involve no breach of either Convention.  We recognise that there may be minority clans who are, at least locally, integrated with majority clans, and other groups who may not be a minority clan at all, being closer to a caste.  Those will require specific consideration.  We also recognise that a division between minority and majority does not represent a bright line on one or other side of which every clan must fall, because there are some which could be considered to be intermediate.”

“123. There are problems with those whose case has been so disbelieved that it is not known what their clan or place of origin is.  It is difficult to see that such a person could succeed; he or she would be a majority clan member who was in effect declining to demonstrate, even to the low standard of proof that they were at risk on return because unable to arrange for clan militia escorts from Mogadishu or wherever else they might be returned to.”

“126. Returnees or lone women returnees claiming protection under the Refugee Convention or under the Human Rights Convention who are found to be former residents of Somaliland or Puntland or persons having a connection with a clan or sub-clan based in either of those regions, would not in general face a real risk of serious harm, whether or not they could arrange in advance for clan militia protection to meet them at the airport and escort them thereafter, provided that they were returned directly to those areas and not via Mogadishu.  If they were to be returned via Mogadishu, we do not know whether a majority clan militia escort could be arranged for them.”

“108. The extensive reliance upon UNHCR material makes a few observations germane.  The value of the UNHCR material is first that where it has observers on the ground, it is in a good position to provide first hand information as to what in fact is happening.  The process then whereby its observations of what is happening become position papers or recommendations is likely to increase the objectivity and soundness of its observations in that respect.  It has a special role in relation to the Geneva Convention.  It may also well be able to offer Governments advice on the practical implications of the forced or mass return of people who are not refugees; these implications may include infrastructure, economic conditions, resettlement facilities and absorption capacity; a slower rate of return may make the local government’s task or the UNHCR task as a reception body that much easier to perform well.

109. But their comments have their limitations and these need equally to be understood.  The UNHCR often speaks of inhibitions on the return, usually forced, of failed asylum seekers, who have been rejected after a proper consideration of their claims.  It follows that the UNHCR is not then commenting on the return of refugees at all; it is acknowledging that they would not face persecution for a Convention reason and it is going beyond its special remit under the Geneva Convention.  This is not a question of picking up on loose language.  The UNHCR is perfectly capable of using language which shows that it is or is not dealing with the risk of persecution for a Convention reason, and sometimes does so.  These are considered papers after all.

110. This is illustrated by UNHCR position papers, such as the January 2004 one dealing with Somalia, where UNHCR has responsibility for voluntary repatriation programmes, currently confined to northern Somalia, and has evident consequential concerns referred to in paragraph 3 of this report about “over-stretched absorption capacity” even in the relatively stable northern part of Somalia.  Reasons of this kind lead UNHCR to discourage signatory states from going ahead with enforced returns of rejected asylum seekers.  However, the only issue arising on statutory appeals on asylum or asylum-related grounds before Adjudicators and the Tribunal is whether the claimant is a refugee and if so, whether to return a person to Somalia would breach the Geneva Convention or constitute treatment contrary to Article 3 ECHR or any other Article, where engaged.  The question of absorption problems that might flow from any United Kingdom government decision to enforce returns in numbers is not of itself the basis for showing that return would breach either Convention.

.111.  The UNHCR, in such circumstances and they arise very frequently, is pursuing what it sees as its wider remit in respect of humanitarian and related practical considerations for the return of people, particularly on a large scale.  This is a common problem where the country of refuge borders the country of past persecution or strife.  What it has to say about the practical problems on the ground will be important where it has staff on the ground or familiar with the conditions which a returnee would face.

.112.  But the assessment of whether someone can be returned in those circumstances is one which has to be treated with real care, if it is sought to apply it to non Refugee Convention international obligations, especially ECHR.  The measure which the UNHCR uses is unclear; indeed, realistically, it may be using no particular measure.  Instead, it is using its own language to convey its own sense of the severity of the problem, the degree of risk faced and the quality of the evidence which it has to underpin its assessment.  It is often guarded and cautious rather than assertive because of the frailties of its knowledge and the variability of the circumstances.

.113.  This is not to advocate an unduly nuanced reading of its material, let alone an unduly legalistic reading.  It is to require that the material be read for what it actually conveys about the level of risk, of what treatment and of what severity and with what certainty as to the available evidence.  But there may be times when a lack of information or evidence permits or requires inferences to be drawn as to its significance, which is for the decision-maker to draw.  There is often other relevant material as well.

.114.  UNHCR’s language is not framed by reference to the ECHR and to the high threshold of Article 3 as elaborated in the jurisprudence of the Strasbourg Court and of the United Kingdom.  That is not a criticism – it is not an expert legal adviser to the United Kingdom courts and couches its papers in its own language.  So its more general humanitarian assessments of international protection needs should to be read with care, so as to avoid giving them an authority in relation to the United Kingdom’s obligations under the ECHR which they do not claim.  They may give part of the picture, but the language and threshold of their assessments show that the UNHCR quite often adopts a standard which is not that of the United Kingdom’s ECHR obligations.

.115.  UNHCR papers are often not the only ones which Adjudicators or the Tribunal has to consider.  Other organisations may have first-hand sources and differ from UNHCR; experts may bring a further perspective.  A considered UNHCR paper is therefore entitled to weight but may well not be decisive.”

“The situation in Mogadishu has changed significantly, both in terms of the extent of population of displacement away from the city, the intensity of the fighting and of the security conditions there.  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 cases 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” [178].  The TFG, Ethiopian and AMISOM forces were “pitted against insurgent forces around Bakara Market” so that “at least 33 civilians were killed in the exchanges” on 22 September 2008.  The UN Secretary General had spoken of “frequent attacks on civilians” which together with “the incessant level of harassment and intimidation by all militarised actors in the city is making living conditions for the civil population intolerable” [176].

“depending on a number of factors: e.g. IDPs from more influential clans or sub-clans appear to have a better chance of being tolerated in the area to which they have fled …; IDPs who have a traditional clan area they can travel to, especially if in that area they have family, or friends, or close clan or sub-clan affiliations, appear to have better prospects of finding safety and support, although not if the area concerned is already saturated with fellow-IDPs …; those who lack recent experience of living in Somalia appear more likely to have difficulties dealing with the changed environment in which clan loyalties have to some extent fractured …; persons returning to their home area from the UK may be perceived as having relative wealth and be more susceptible to extortion, abduction and the like …; those who live in areas not particularly affected by the fighting and which are seen as not important strategically to any of the main parties to the conflict would appear less subject to security problems; whether the IDPs are female also appears a significant factor, given the evidence of the additional risks women and girls face of abduction, rape and harassment.  To these factors, of course, one has to add the variables of age and state of health.  Also relevant will be the evidence about the prevailing economic conditions in the area, bearing in mind the recent history of cruel droughts, poor harvests and rising food prices.” [160]

“Of course in the case of Somali claimants who are able to satisfy the respondent or the Tribunal that they have given a credible account of the existence of a risk personal to them, there will often be little difficulty in showing a Convention ground based on race (clan) or religion (if pro- or anti-jihadist) or political opinion (if perceived as pro- or anti-government or pro- or anti-insurgents).  However (excluding the fact that in the case of AM2 it is an accepted fact that he is a member of the Sheikhal Logobe clan), our focus in these appeals is confined to persons who have failed to show any personal risk characteristics beyond their nationality and home area.  Is it possible to identify any Convention ground at this level of generality?  We think not.”

“As Ms Laing herself put it during her closing submissions, there are no ‘hermetic seals’ between this issue [Article 15(c)] and the subject-matter covered by the refugee protection and Article 3 grounds.  It is apparent from the Tribunal cases of HH and KH that the subject-matter of Article 15(c) protection is seen to overlap heavily with the subject-matter of refugee protection and Article 3 protection” [13].

In this regard, we would add that the scheme of the Qualification Directive requires decision-makers to give primacy to an assessment of refugee protection over subsidiary protection.

The Applicants’ circumstances

Background on Somalia

Case law

Relevant country information

The ECtHR’s Assessment

Mogadishu

Southern and central Somalia (outside Mogadishu)

(a) The internal relocation alternative

(b) The risk in transit or upon settling elsewhere in southern and central Somalia

(c) Humanitarian conditions in refugee and IDP camps

The Significance of Sufi & Elmi to the present appeals and country guidance

(a) Formal status

“court or tribunal determining a question which has arisen in connection with a Convention right must take into account any-

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,

…

whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.”

“22. The Secretary of State, whilst accepting that Kalashnikov is plainly relevant, asserts that it is neither binding authority nor, says Mr Garnham, does it provide definitive guidance on any of the issues of substance.  The judgment in Kalashnikov, he says, is a conclusion on the facts of a particular case.  No two cases alleging detention in conditions breaching Article 3 will be identical, and the Court must look at the individual circumstances of each case to decide if a violation has been established.  The appellant’s experience of prison in Russia was, he says, hugely different from Kalashnikov’s and even on the evidence adduced by the appellant himself there was nothing to show that he had been kept in conditions breaching Article 3.

23. I cannot accept Mr Garnham’s submissions.  As I have already said, the appellant’s remaining claim to the protection of Article 3 is founded not on his own particular circumstances but on the conditions faced generally by persons, whether or not the victims of persecution, incarcerated in the Russian prison system.  To establish his case he does not need to refer to evidence specific to his own circumstances but rather to the evidence bearing on the class of which he is a member.  In other words, in the circumstances of this case, to the evidence showing the conditions faced generally by persons incarcerated in the Russian prison system.

24. True it is that the decision in Kalashnikov focused on the conditions in which Kalashnikov himself had been detained, and addressed the question of whether he had been subjected to degrading treatment.  But the wider significance of the case emerges from the Russian Federation’s admission that conditions which the Federation accepted fell below the standard set by other Member States of the Council of Europe, and which the Court held amounted to degrading treatment constituting a breach of Article 3, applied to ‘most detainees in Russia’.”

“(a) relates to the country guidance issue in question; and

  (b) depends upon the same or similar evidence.”

(b) Article 3 and humanitarian conditions

“278. In Salah Sheekh v. the Netherlands, cited above, the Court held that socio-economic and humanitarian conditions in a country of return did not necessarily have a bearing, and certainly not a decisive bearing, on the question whether the persons concerned would face a real risk of ill-treatment within the meaning of Article 3 in those areas...  However, in N. v. the United Kingdom … the Court held that although the Convention was essentially directed at the protection of civil and political rights, the fundamental importance of Article 3 meant that it was necessary for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases.  It therefore held that humanitarian conditions would give rise to a breach of Article 3 of the Convention in very exceptional cases where the humanitarian grounds against removal were ‘compelling’ ...

279. In the recent case of M.S.S. v. Belgium and Greece … the Court stated that it had not excluded the possibility that the responsibility of the State under Article 3 might be engaged in respect of treatment where an applicant, who was wholly dependent on State support, found himself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity (§ 253).  In that case, the applicant had spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live.  Added to that, the Court noted the applicant’s ever-present fear of being attacked and robbed and the total lack of any likelihood of his situation improving (§ 254).  It held that the conditions in which the applicant was living reached the Article 3 threshold and found Greece in breach of that Article as it was the State directly responsible for the applicant’s living conditions (§ 264).  It also found Belgium to be in breach of Article 3 because, inter alia, it had transferred the applicant to Greece and thus knowingly exposed him to living conditions which amounted to degrading treatment (§ 367).

280. In the present case the Government submitted, albeit prior to the publication of the Court’s decision in M.S.S. v. Belgium and Greece, that the appropriate test for assessing whether dire humanitarian conditions reached the Article 3 threshold was that set out in N. v. the United Kingdom.  Humanitarian conditions would therefore only reach the Article 3 threshold in very exceptional cases where the grounds against removal were ‘compelling’.

281. The Court recalls that N. v. the United Kingdom concerned the removal of an HIV-positive applicant to Uganda, where her lifespan was likely to be reduced on account of the fact that the treatment facilities there were inferior to those available in the United Kingdom.  In reaching its conclusions, the Court noted that the alleged future harm would emanate not from the intentional acts or omission of public authorities or non-State bodies but from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.  The Court therefore relied on the fact that neither the applicant’s illness nor the inferior medical facilities were caused by any act or omission of the receiving State or of any non-State actors within the receiving State.

282. If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the State’s lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N. v. the United Kingdom may well have been considered to be the appropriate one.  However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct and indirect actions of the parties to the conflict.  The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population ...  This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures.  Moreover, the situation has been greatly exacerbated by al-Shabab’s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between a third and a half of all Somalis are living in a situation of serious deprivation ...

283. Consequently, the Court does not consider the approach adopted in N. v. the United Kingdom to be appropriate in the circumstances of the present case.  Rather, it prefers the approach adopted in M.S.S. v. Belgium and Greece, which requires it to have regard to an applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame (see M.S.S. v. Belgium and Greece, cited above, § 254).”

“42. …  The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3.  The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.  In the D. case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling.  However, it considers that it should maintain the high threshold set in D v United Kingdom and apply them in subsequent case-law which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.”

“366. In the instant case the Court has already found the applicant’s conditions of detention and living conditions in Greece degrading…  It notes that these facts were well known before the transfer of the applicant and were freely ascertainable from a wide number of sources…  It also wishes to emphasise that it cannot be held against the applicant that he did not inform the Belgian administrative authorities of the reasons why he did not wish to be transferred to Greece.  It is established that the procedure before the Aliens Office made no provision for such explanations and that the Belgian authorities applied the Dublin Regulation systematically…

367. Based on these conclusions and the obligations incumbent on the States under Article 3 of the Convention in terms of expulsion, the Court considers that by transferring the applicant to Greece the Belgian authorities knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment.”

“264. It follows that, through the fault of the authorities, the applicant has found himself in a situation incompatible with Article 3 of the Convention.  Accordingly, there has been a violation of that provision” (our emphasis).

PART F

THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

Submissions and evidence

(i) Eligibility Guidelines and updates: these contain factual descriptions of circumstances in individual countries as objectively assessed and corroborated by UNHCR, setting out UNHCR’s legal analysis and recommendations.

(ii) Safe third country papers: these contain UNHCR positions on the availability of protection in third countries.

(iii) Return advisories: these provide guidance on the return of people not found to be in need of international protection, following fair, efficient asylum procedures.

(iv) Country of origin papers: these summarise background country of origin information and may be externally commissioned by UNHCR, in which case that would be made clear.  Such papers do not contain legal analysis or recommendation.

“means that all factual statements made in Eligibility Guidelines (whether a footnote reference appears or not) are assessed to be reliable and are corroborated.  It also means that the association of a factual statement in an Eligibility Guideline with a public source by a footnote reference does not mean that this reference is the only basis of that statement; in many cases it will represent a form of corroboration for the statement.”

The Tribunal’s assessment

PART G

THE UKBA’S SOMALIA – REPORT OF FACT-FINDING MISSION TO NAIROBI (8-15 SEPTEMBER 2010 AND WILSON SOLICITORS’ EVIDENCE FROM NAIROBI (14-21 MAY 2011)

“233. That being said, where a report is wholly reliant on information provided by sources, the authority and reputation of those sources and the extent of their presence in the relevant area will be relevant factors for the Court in assessing the weight to be attributed to their evidence.  The Court recognises that where there are legitimate security concerns, sources may wish to remain anonymous.  However, in the absence of any information about the nature of the sources’ operations in the relevant area, it will be virtually impossible for the Court to assess their reliability.  Consequently, the approach taken by the Court will depend on the consistency of the sources’ conclusions with the remainder of the available information.  Where the sources’ conclusions are consistent with other country information, their evidence may be of corroborative weight.  However, the Court will generally exercise caution when considering reports from anonymous sources which are inconsistent with the remainder of the information before it.

234. In the present case the Court observes that the description of the sources relied on by the fact-finding mission is vague.  As indicated by the applicants, the majority of sources have simply been described either as ‘an international NGO’, ‘a diplomatic source’, or ‘a security advisor’.  Such descriptions give no indication of the authority or reputation of the sources or of the extent of their presence in southern and central Somalia.  This is of particular concern in the present case, where it is accepted that the presence of international NGOs and diplomatic missions in southern and central Somalia is limited.  It is therefore impossible for the Court to carry out any assessment of the sources’ reliability and, as a consequence, where their information is unsupported or contradictory, the Court is unable to attach substantial weight to it.”

“A number of the statements [in the Wilson Solicitors’ report] are anonymised.  This is because the representatives of NGO’s that we met were extremely concerned that if they were identified then their staff working in Somalia could be at risk.  I would ask the Tribunal to note the UNHCR’s similar concerns.

I can say that most of the organisations that we saw were large NGO’s the names of which will be known to people in the UK.  A number of people that we saw said that they had been seen by the Home Office during previous Fact-Finding Missions.  A number also said that they had been approached by representatives of the Foreign Office who had been making enquiries during the same week we were in Nairobi presumably to assist the respondent in preparing their evidence.”

PART H

FURTHER LEGAL ISSUES

(1) Al-Shabab and religion

“Article 9

Acts of persecution

1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must:

(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).

2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:

(a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;

(c) prosecution or punishment, which is disproportionate or discriminatory;

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);

(f) acts of a gender-specific or child-specific nature.

3. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.

Article 10

Reasons for persecution

1. Member States shall take the following elements into account when assessing the reasons for persecution:

…

(b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief;

…”

“Unless an asylum seeker’s present religious beliefs and practices accord with those of AS so that he or she has to adopt practices that are not his or her own and would have to do so in order to avoid being subject to persecution, the asylum seeker has [a] well founded fear of being persecuted for reason of religion.”

“1. Everyone shall have the right to freedom of thought, conscience and religion.  This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No-one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

…”

The Tribunal’s assessment

“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of particular social group or political opinion” (our emphasis).

(2) No Requirement to act illegally?

(3) “Playing the game” – RT (Zimbabwe)

“36. It may be said that there is marked difference in seriousness between the impact of having to lie on isolated occasions about political opinions which one does not have, and the ‘long-term deliberate concealment’ of an ‘immutable characteristic’, involving denial to the members of the group their ‘fundamental right to be what they are’ (see per Lord Hope para 11, 21).  We are not persuaded, however, that this is a material distinction in this context.  The question is not the seriousness of the prospective maltreatment (which is not in issue) but the reason for it.  If the reason is political opinion, or imputed political opinion, that is enough to bring it within the Convention.  In this case, we are concerned with the ‘imputed’ political opinions of those concerned, not their actual opinions (see para 4 above).  Accordingly, the degree of their political commitment in fact, and whether political activity is of central or marginal importance to their lives, are beside the point.  The ‘core’ of the protected right is the right not to be persecuted for holding political views which they do not have.  There is nothing ‘marginal’ about the risk of being stopped by militia and persecuted because of that.  If they are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that seems to us to be covered by the HJ(Iran) principle, and does not defeat their claims to asylum.

37. Accordingly we accept the thrust of Mr Norton-Taylor's second submission, if not the precise wording.  It is not a question of what the claimant is ‘required’ to do.  However, if the Tribunal finds that he or she would be willing to lie about political beliefs, or about the absence of political beliefs, but that the reason for lying is to avoid persecution, that does not defeat the claim.”

“53. The problems posed by these cases are extreme.  None of the appellants is a political refugee in the ordinary sense.  In most contexts their claims to asylum would be hopeless.  However, conditions in Zimbabwe, as they are described in RN are exceptional.  The legality of these decisions must be decided by reference to the guidance in that case.  Any changes since the period covered by that decision will be considered by the tribunal as part of its review of the country guidance. Applying RN we are satisfied that the appeals, except DM, should be allowed.  Mr Norton-Taylor invited us to substitute our own decision in all or at least some of them.  For the reasons given above, we agree in respect of RT, in which the claim to asylum will be allowed.  We are not persuaded that course is open to us in the cases of SM and AM, where there were adverse findings of credibility.  We shall accordingly remit those cases to the Upper Tribunal.”

(4) Internal relocation and the burden of proof

“Article 8

Internal protection

1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.

2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.

3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.”

(5) Legal issues regarding appellant MW’s appeal

(a)  Effect of Beoku-Betts

(b) Refugee protection for the persecutor?

PART I

ASSESSMENT OF THE GENERAL EVIDENCE

Introduction

(1) Mogadishu

Evidence and submissions

“There is now an internal armed conflict within the meaning of international humanitarian law (IHL) and Article 15(c) of the Refugee Qualification Directive throughout central and southern Somalia, not just in and around Mogadishu. The armed conflict taking place in Mogadishu currently amounts to indiscriminate violence at such a level of severity as to place the great majority of the population at risk of a consistent pattern of indiscriminate violence. On the present evidence Mogadishu is no longer safe as a place to live in for the great majority of returnees whose home area is Mogadishu”.

(a) Daynile – civilians killed and wounded on 16 and 24 November 2009, 21 July 2010, 67 wounded in districts including Daynile on 26 March 2011 and ‘massive shelling’ of Daynile on 9 April 2011, killing nine civilians and injuring 26;

(b) Hamar JaabJab – woman and two children killed by a mortar on 20 December 2009; four civilians killed and ten wounded on 13 January 2010; ten civilians wounded by heavy artillery on 14 June 2010; eleven people, including civilians killed and 40 injured by suicide bombing on 21 February 2011; two boys killed after explosive device with which they were playing blew up, 23 April 2011; one civilian killed by crossfire on 31 May 2011; ten civilians wounded by fighting between TFG and police on 13 June 2011;

(c) Waaberi – three civilians killed by landmine on 18 April 2010; several civilians wounded by retaliatory fire on 11 September 2010; civilians wounded during clash between rival TFG soldiers on 13 March 2011; five killed and six wounded by similar fighting on 26 April 2011; seventeen civilians killed and seventeen wounded by mortar attack on 25 May 2011;

(d) Hamar Weyne – mortar attack killing two civilians and injuring three on 20 May 2010; eleven people including three children killed by a mortar attack on a hospital on 11 September 2010; roadside bomb intended for Finance Ministry official killing five people, 4 July 2010; ten schoolchildren injured by mortar landing on their school on 19 July 2010; Al-Shabab suicide bombing at Muna Hotel killing 31, 24 August 2010;

(e) Yaaqshid – three civilians killed by artillery barrage on 27 March 2011; four civilians killed by bombardments on residential areas on 2 June 2011;

(f) Karaan – 22 killed and 37 wounded in clashes on 24 October 2010; three killed and two injured on 28 October 2010 (it is unclear whether all or any of these were civilians);

(g) Wadajir/Medina (the so-called ‘green zone’) – four civilians wounded by AMISOM firing on 25 January 2011; sixteen killed and 56 injured (mostly civilians) shopping at Benadir Market as a result of fighting between TFG police and soldiers on 3 February 2011; five injured when a police officer’s house was bombed on 6 April 2011; Medina Hospital hit by mortar rounds in April 2011; two civilians wounded when TFG soldiers clashed among themselves on 26 June 2011.

The Tribunal’s findings

(a) Article 15(c)

“a. The Article seeks to elevate the state practice of not returning unsuccessful asylum seekers to war zones or situations of armed anarchy for reasons of common humanity into a minimum standard (QD at [21]).

b. The scope of protection is an autonomous concept distinct from and broader than Art 3 protection even as interpreted by the European Court of Human Rights (ECtHR) in NA v United Kingdom (Elgafaji at [33]-[36]; QD at [20], [35]); HH and Others) at [31]).

c. It is concerned with ‘”threat .. to a civilian’s life or person” rather than to specific acts of violence .. the threat is inherent in a general situation of  .. armed conflict…The violence that gives rise to the threat is described as indiscriminate, a term which implies that it may extend to people irrespective of their personal circumstances’ (Elgafaji [34]).

d. The Article is intended to cover the ‘real risks and real threats presented by the kinds of endemic acts of indiscriminate violence - the placing of car bombs in market places; snipers firing methodically at people in the streets  - which have come to disfigure the modern world’. It is concerned with ‘serious threats of real harm’ (QD at [27] and [31]).

e. ‘Individual’ must be understood as covering harm to civilians irrespective of their identity where the degree of indiscriminate violence characterising the armed conflict taking place reaches such a high level that substantial grounds are shown for believing that a civilian …would solely on account of his presence on the territory… face a real risk of being subjected to the serious threat’ (Elgafaji [35]).

f. ‘The more the applicant is able to show that he is specifically affected by reason of factors  particular to his personal circumstances, the lower the level of indiscriminate violence required’ (Elgafaji [39]).

g. A consistent pattern of mistreatment is not a necessary requirement to meet the real harm standard. ‘The risk of random injury or death which indiscriminate violence carries is the converse of consistency’ (QD at [32]).

h. There is no requirement that the armed conflict itself must be exceptional but there must be ‘an intensity of indiscriminate violence great enough to meet the test spelt out by the ECJ’ and this will self evidently not characterise every such situation (QD at [36]).

i. ‘The overriding purpose of Article 15(c) is to give temporary refuge to people whose safety is placed in serious jeopardy by indiscriminate violence, it cannot matter whether the source of the violence is two or more warring factions (which is what conflict would ordinarily suggest) or a single entity or faction’ (QD at [35]).

j. ‘Civilian’ means all genuine non-combatants at the time when the serious threat of real harm may materialise (QD [37]).”

“31. … it is appropriate to compare the three types of ‘serious harm’ defined in Article 15 of the Directive, which constitute the qualification for subsidiary protection, where, in accordance with Article 2(e) of the Directive, substantial grounds have been shown for believing that the applicant faces ‘a real risk of [such] harm’ if returned to the relevant country.

32. In that regard, it must be noted that the terms ‘death penalty’, ‘execution’ and ‘torture or inhuman or degrading treatment or punishment of an applicant in the country of origin’, used in Article 15(a) and (b) of the Directive, cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm.

33. By contrast, the harm defined in Article 15(c) of the Directive as consisting of a ‘serious and individual threat to [the applicant's] life or person’ covers a more general risk of harm.

34. Reference is made, more generally, to a ‘threat ... to a civilian's life or person’ rather than to specific acts of violence.  Furthermore, that threat is inherent in a general situation of ‘international or internal armed conflict’.  Lastly, the violence in question which gives rise to that threat is described as ‘indiscriminate’, a term which implies that it may extend to people irrespective of their personal circumstances.

35. In that context, the word ‘individual’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the Directive.

36. That interpretation, which is likely to ensure that Article 15(c) of the Directive has its own field of application, is not invalidated by the wording of recital 26 in the preamble to the Directive, according to which ‘[r]isks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm’.

37. While that recital implies that the objective finding alone of a risk linked to the general situation in a country is not, as a rule, sufficient to establish that the conditions set out in Article 15(c) of the Directive have been met in respect of a specific person, its wording nevertheless allows by the use of the word ‘normally’ for the possibility of an exceptional situation which would be characterised by such a high degree of risk that substantial grounds would be shown for believing that that person would be subject individually to the risk in question.

38. The exceptional nature of that situation is also confirmed by the fact that the relevant protection is subsidiary, and by the broad logic of Article 15 of the Directive, as the harm defined in paragraphs (a) and (b) of that article requires a clear degree of individualisation.  While it is admittedly true that collective factors play a significant role in the application of Article 15(c) of the Directive, in that the person concerned belongs, like other people, to a circle of potential victims of indiscriminate violence in situations of international or internal armed conflict, it is nevertheless the case that that provision must be subject to a coherent interpretation in relation to the other two situations referred to in Article 15 of the Directive and must, therefore, be interpreted by close reference to that individualisation.

39. In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.”

“225. In Elgafaji the ECJ held that article 15(c) would be violated where substantial grounds were shown for believing that a civilian, returned to the relevant country, would, solely on account of his presence on the territory of that country or region, face a real risk of being subjected to a threat of serious harm.  In order to demonstrate such a risk he was not required to adduce evidence that he would be specifically targeted by reason of factors particular to his personal circumstances (Elgafaji, cited above § 35).  Nevertheless, the ECJ considered that such a situation would be ‘exceptional’ and the more the applicant could show that he was specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection (Elgafaji, cited above, § 39).

226. The jurisdiction of this Court is limited to the interpretation of the Convention and it would not, therefore, be appropriate for it to express any views on the ambit or scope of Article 15(c) of the Qualification Direction [sic].  However, based on the ECJ’s interpretation in Elgafaji, the Court is not persuaded that Article 3 of the Convention, as interpreted in NA, does not offer comparable protection to that afforded under the Directive.  In particular, it notes that the threshold set by both provisions may, in exceptional circumstances, be attained in consequence of a situation of general violence of such intensity that any person being returned to the region in question would be at risk simply on account of their presence there.”

“Nor, however, has the judgment [in Elgafaji] introduced an additional test of exceptionality. By using the words “exceptional” and “exceptionally” it is simply stressing that it is not every armed conflict or violent situation which will attract the protection of art 15(c), but only one where the level of violence is such that, without anything to render them a particular target, civilians face real risks to their life or personal safety” [25].

“One of the most interesting findings from this survey was that 88.9% of the respondents in south/central Somalia had lived abroad at some time.  The main countries that they had lived in were the United Arab Emirates and United Kingdom (each with four respondents) as well as Canada (two respondents).”

The report continues:-

“Respondents from the private sector included hotel owners, cosmetics importers, sales companies, electricity providers, care organisations, fuel providers, medical and drug vendors, furniture importers, barbers, sweet sellers, transport operators, telecommunications companies, export agents, fishing companies, media representatives, a cell phone repairer, a banking company, an electronics importer, a remittance company, agricultural investors, a goldsmith, stationers, importers of construction materials, educational providers, restaurant owners, water providers, and other trades and businesses.  Organisations in Somaliland tended to be older (37.5% had been operating for at least ten years), whereas in Puntland and south central they were younger (68.9% in Puntland and 70.6% in south central had been operating for less than ten years).”

Earlier in the same report we find:-

“Interviewees who are involved in the private sector stressed that some space for business can be negotiated for business in Somalia despite the threats from militias, Al-Shabab, and corrupt TFG officials.  Businesses are generally able to rely on clan support to deter criminal attacks on their holdings, and can work out arrangements to move goods across insecure zones.  Remittance companies, for instance, are able to work with very large sums of cash and rarely experience armed robbery.  However, as discussed below some people in the Diaspora said that the insecurity dissuaded them from becoming involved in business.”

“2. The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination and events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refugee in another place outside his country of origin or nationality.”

(b) Article 3

Armed conflict

Humanitarian situation

(c) Refugee Convention

(2) Southern and central Somalia, outside Mogadishu

Evidence and submissions

“The widespread disregard of their obligations under international humanitarian law by all parties to the conflict and the reported scale of human rights violations make it clear that any person returned to southern and central Somalia would, solely on account of his/her presence in southern and central Somalia, face a real risk of serious harm.”

“…prepared to accept that it might be possible for a returnee to travel from Mogadishu International Airport to another part of southern and central Somalia without being exposed to a real risk of treatment proscribed by Article 3 solely on account of the situation of general violence.  However, this will very much depend upon where a returnee’s home area is.  It is not possible for the court to assess the level of general violence in every part of southern and central Somalia and, even if it were to undertake such an exercise, it is likely that its conclusions will become outdated very quickly.  Consequently, if the applicant’s home is one which has been affected by the conflict, the conditions there will have to be assessed against the requirements of Article 3 at the time of removal.”

“The Government submitted that there is evidence of increased urbanisation of the Afgoye Corridor.  Although this assertion is supported by a number of the country reports, it is not clear to the Court whether or not urbanisation has improved conditions for the majority of IDPs.  In fact, some reports suggest that IDPs are experiencing increasing difficulties in finding shelter in the Afgoye Corridor as landlords are either selling land that IDPs live on or are charging rent that they cannot afford.”

The Tribunal’s findings

(a) Article 15(c)

(b) Article 3

Armed conflict

Living under Al-Shabab

Humanitarian situation

(c) Refugee Convention

“36. It may be said that there is marked difference in seriousness between the impact of having to lie on isolated occasions about political opinions which one does not have, and the ‘long-term deliberate concealment’ of an ‘immutable characteristic’, involving denial to the members of the group their ‘fundamental right to be what they are’ (see per Lord Hope para 11, 21).  We are not persuaded, however, that this is a material distinction in this context.  The question is not the seriousness of the prospective maltreatment (which is not in issue) but the reason for it.  If the reason is political opinion, or imputed political opinion, that is enough to bring it within the Convention.  In this case, we are concerned with the ‘imputed’ political opinions of those concerned, not their actual opinions (see para 4 above).  Accordingly, the degree of their political commitment in fact, and whether political activity is of central or marginal importance to their lives, are beside the point.  The ‘core’ of the protected right is the right not to be persecuted for holding political views which they do not have.  There is nothing ‘marginal’ about the risk of being stopped by militia and persecuted because of that.  If they are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that seems to us to be covered by the HJ(Iran) principle, and does not defeat their claims to asylum.”

(3) Internal relocation

(a)  To Mogadishu

(b)  To an IDP camp in the Afgoye Corridor

(c)  To an area controlled by Al-Shabab

(d)  To an area not controlled by Al-Shabab

“Scarce resources and natural disasters such as floods and droughts limit the possibility for and willingness to support new arrivals in an area, even where they belong to the same clan.  However, great efforts are still made to help relatives and neighbours.  …it is common to find families consisting of six to eight members, opening their homes to a further six to eight relatives.  They share the little they have, but without the money transfers from abroad, the already difficult living conditions would be significantly worse for the large majority of the population.”

(4) Travelling home or to another place of safety

(5) Somaliland and Puntland

in general only accept back persons who were former residents of those regions and were members of locally based clans or sub clans. The Netherlands Ministry of Foreign Affairs report of November 2004 notes at paragraph 4.6 that UNHCR is encouraging the return of Somalis originating from Somaliland and Puntland ’Originating from’ is interpreted here to mean ‘having previously lived there for some time (more than a year)’” (original emphasis).

“3.2 United Kingdom

Current estimates of the number of Somalis living in the UK range from 95-250,000.  The official 2001 census reported a population of 43,000 (Casciani, 2006).  The 2006 Annual Population Survey (APS) gives a figure of 82,300.  However, neither of these figures include Somalis born in the UK or in any country outside Somalia.  The census figures from 2001 suggested 89% of all Somalis were living in London, but this percentage is almost certainly lower now as a result of the dispersal policy.  Large Somali communities have developed in Bristol, Manchester, Birmingham, and Leicester, among other places.

The UK’s Somali population is older and better established than in many other European countries.  The first Somalis to settle in the UK were seamen from Somaliland who [were] in the British merchant navy, and settled in coastal areas such as Cardiff, Bristol and Liverpool during the early 1890’s (Change Institute 2009:24).  During World War 2, Somalis served with the British navy, and some took up residency in the UK to obtain employment, particularly in Sheffield and South Yorkshire (Ibid, citing Halliday 1992:1B).  The post-war economic boom in the UK also drew Somalis; the Somalilander community in London’s East End (one of the areas with the largest concentrations of Somalilanders in the UK) formed during this period (Bradbury 2008:175).  Only since the weakening and eventual collapse of the government of Somalia at the end of the 1980’s – early 1990s has the population included large numbers of refugees and asylum seekers.  Today Somalis are consistently among the top ten countries generating asylum seekers to the UK.”

(6) Female genital mutilation

“11. The parent could nevertheless be considered a principal applicant where he or she is found to have a claim in his or her own right.  This includes cases where the parent will be forced to witness the pain and suffering of the child, or risk persecution for being opposed to the practice.

12. Even where the parents have been in the country of asylum for some time, a well-founded fear on behalf of the child or because of the parents’ own opposition to FGM can arise upon the birth of a daughter post-flight.  The fact that the applicant did not demonstrate this conviction or opinion in the country of origin, nor act upon it, does not itself mean that a fear of persecution is unfounded, as the issue would not necessarily have arisen until then.  The birth of a daughter may, in these circumstances, give rise to a sur place claim.  If it is held that the opposition or fear of FGM is a mere artifice for the purpose of creating grounds for asserting a fear of persecution, a stringent evaluation of the well-foundedness of the fear is warranted.  In the event that the claim is found to be self-serving, but the claimant nonetheless has a well-founded fear of persecution, international protection is required.”

Part J

ASSESSING THE NEGATIVE PULL OF LIES: MA (SOMALIA)

“21. …  The task of sorting out truth from lies is indeed a daunting one.  It is all too common for the AIT to find that an appellant’s account is incredible.  And yet there may be objective general undisputed evidence about the conditions in the country to which the Secretary of State wishes to send the appellant which shows that most of the persons who have the characteristics of, or fall into the category claimed by, the appellant will be at real risk of treatment contrary to Article 3 of the ECHR or persecution for a Refugee Convention reason (as the case may be), but that a minority of these, because of special circumstances, are not subject to such risk.”

“First, it should decide on the evidence and circumstances other than the evidence given by the individual concerned what the likelihood is of him or her being without sufficient protection if returned to Place A (evidence A);

Secondly, the Tribunal should consider whether the individual’s evidence establishes a reasonable possibility that he or she has no protection on return to Place A (evidence B); and

 If the individual has told a lie about his or her connections to Place A, this may be of ‘no great consequence’ or it may suggest (to a greater or lesser extent) that he or she does benefit [from] protection in Place A and is trying to conceal it.  In this latter situation the lie will have a ‘negative pull’ as evidence that such protection exists … and the Tribunal must consider whether it is sufficient to undermine the other evidence (including the statistical likelihood), i.e. Evidence A, that the individual is not able to benefit from protection on return.”  (Mr Hickman’s emphases)

Part K

SUMMARY OF LEGAL FINDINGS

PART L

COUNTRY GUIDANCE ON SOMALIA

Mogadishu

Southern and central Somalia, outside Mogadishu

Somaliland and Puntland

Female genital mutilation

Part M

Re-making the decisions in the appeals

Appellant AMM

Appellant MW

Appellant ZF

Appellant FM

Appellant AF

Signed Date

Upper Tribunal Judge P R Lane

Summary of Oral Evidence

Appellant AMM

1.           The appellant gave his evidence in Somali through the court interpreter and confirmed that he lived in Manchester and that he had made the statement contained in the bundle. He stated that it had been read back to him in Somali and that the contents were true.

2.           The appellant was asked for his opinion of Al Shabab. He stated that the difference between himself and Al Shabab was the interpretation of the religion. He stated that according to Islam, killing and taxation was prohibited and so Al Shabab were acting against Islam. He stated that they entered other people's houses by force and took away televisions and radios. He was asked what he had to say about the claim that Al Shabab were killing in the name of Islam. He stated that according to his religion, only God could give and take away life. He said Somalia had been a Muslim country for centuries that now Al Shabab had a different version of Islam which they were using for their own interests. He stated that they interpreted the religion in a different way. Islam meant peace and the killing and execution of people was not allowed. He stated that the collection of taxes was not right, particularly when it was used to buy weapons and wage wars against civilians. He was asked how he would feel if he was stopped at a checkpoint and asked to pay money. He stated that he would feel guilty because he would believe that he had committed a crime against God by paying money. He was asked to explain his reply and he stated it was because that money would be used to kill others.

3.           The appellant was then cross examined by Mr Staker. He confirmed that he was born in January 1977 and that he was 34 years old. It was put to him that he was healthy and able bodied. He replied that he may look that way but he was stressed. It was acknowledged that he might find the hearing stressful but it was pointed out that there was no medical evidence as to any ongoing health problems. He stated that he had been stressed for six years. He agreed that he had had several previous appeals. He confirmed he arrived in 2005 and that after the refusal of his first appeal he had gone to Ireland and claimed asylum there. He stated that it had not been his intention but when he had lost his appeal and was told to leave the country he went there and made a claim. He had been told at Dublin that he had to return to the UK and that was what had happened and he then had several more appeals. It was put to him that the Tribunal had accepted he was from Jowhar but that the rest of his account had been rejected. He said he disagreed with the findings. He was asked whether he had any family in Somalia and he said he did not. He had three brothers in Libya and although they used to have contact with each other, that was no longer possible because of the ongoing problems in Libya. He stated that he did not believe there was any communication with people in Libya and he said a lot of Somalis had been killed there because they were suspected of working for Gaddafi’s forces. He stated that he had two sisters working as cleaners in Saudi Arabia and that he was in contact with them. He had also been in contact with his wife before his departure for Ireland but he no longer knew where she was. He stated he had no relatives at all in Somalia as his father had been an only child and so had his mother. He was asked about clan connections. He stated that there were always clan connections but it was not possible to rely on them. He stated he had considered committing suicide many times. He had some Somali friends here and he watched Somali news on the television.

4.           The appellant confirmed that he had heard of the voluntary assisted return program and he was aware of the assistance offered under it. He was asked whether he would accept that assistance if he returned to Somalia. He replied that he had not come to the UK to make money but to save his life. He stated that if Somalia was stable he would go voluntarily. He did not want any money. He was asked whether he was aware that 80% of the population of Mogadishu lived under TFG control. He asked whether Mr. Staker was suggesting that Mogadishu was safe. The question was repeated. He replied that he believed that Mr. Staker was misinformed. He stated that the TFG were only in control in Villa Somalia and they were unable to move without guards. The population generally was not safe and there was no ‘80% safe area’. It was put to him that 80% of the population lived in areas that were not under the control of Al Shabab. He stated that the population lived outside Mogadishu and only came into the city in the morning in order to avoid war. He stated there were no safe areas and there was war everywhere. He stated that a minister had been killed by his own niece and the port was under fire just the other day. It was put to him that there were large areas outside Mogadishu that were not under the control of Al Shabab. He replied that he was not aware of any such places; to his knowledge the whole of Somalia, with the exception of Somaliland and Puntland, was under Al Shabab control. He was asked whether he had heard that there were parts of Somalia where there was no fighting. He replied that if the capital was not safe then nowhere was safe. He stated that Somaliland and Puntland were clan-based and had their own problems. He stated that Jowhar was an Al Shabab base. He was asked whether he was aware that internal travel was possible in Somalia. He replied that he would be accused of being a spy if he returned. It was put to him that there were transport links between Mogadishu and Jowhar. He stated that he was aware of that. It was put to him that people did move between Al Shabab and TFG controlled areas. He disagreed with that and said that once somebody was in an Al Shabab area, they would be unable to move into a TFG controlled area and vice versa. The only way to move between areas was to avoid checkpoints otherwise one could be executed. He said he had heard people talking about this.

5.           The appellant was asked whether he knew of anyone who had returned to Somalia after living for a long time in the UK or in Western Europe. He said he had, but did not specifically know anyone who had done so.

6.           It was put to him that he had claimed in his witness statement that children were forcibly recruited by Al Shabab. He agreed with this. It was put to him that he was not a child and had no children. He stated that he did have a 12-year-old child but he did not know his whereabouts. He was asked on what basis he claimed in his statement that Al Shabab forced people to listen to long sermons of jihad. He replied that Al Shabab aimed to brainwash people. It was put to him that this was just a presumption on his part. He replied he had heard people talking about it. He was asked whether he knew of anyone who had been punished for refusing to fight for Al Shabab. He replied that Al Shabab did not allow any news broadcasters to record facts about them but he had heard that people were missing. The question was repeated. He said he had not seen anything on the television but there were lists on the internet of people who had been executed.

7.           The appellant stated that he was a Sunni Muslim. He was asked whether there was anything about him that was different from other Sunni Muslims. He stated that Al Shabab called themselves Sunnis but they were not. He stated that Al Shabab were after people like him and wanted to force them to do what they (Al Shabab ) wanted. The appellant was asked whether he was required by his religion to smoke and chew khat. He stated he was permitted to do so. The question was repeated. He replied that it was his hobby to smoke and chew. He was asked whether he would be prevented from going to the mosque and praying by Al Shabab. He said he had not heard that they would do that but they did force people to go and pray.

8.           He was asked about his objections to taxation. He replied that taxes were taken and used to kill people and so in a way both he and the killers were at fault. He was asked whether it would be against his religion to pay taxes in the UK if he disagreed with the objectives of the government. He replied that he had not claimed that his religion did not allow him to pay tax and he explained that if he paid taxes in the UK he knew that the money would be used for housing or the infrastructure and not for killing.

9.           In re-examination the appellant confirmed that he had left Somalia in 2000 and had not been back since then.

10.        In response to questions from the Tribunal the appellant stated that he believed the UK was a safe country and that it was up to the government here to use taxation in whatever way it chose. He was asked where he had left his wife when he left Somalia. He stated that he had left her in Jowhar with her family. He was asked what had happened to her family. He replied that she was an orphan and he meant he had left her with his family. He was asked why he had given a false name to the UK authorities when he made his third asylum application. He stated that he was forced to do so; it had not been his intention and that people who came here after him had obtained refugee status. He accepted that it had been a mistake and he should not have done it but he had been given the wrong advice.

11.        The appellant was asked what he had done between leaving Somalia in 2000 and arriving here in 2005. He said he had been travelling through Ethiopia, Sudan and Libya. He had spent ten days at sea trying to get to Europe from Libya. The boat had sunk and he had been rescued by a cargo ship and brought to the UK.

12.        The appellant was asked whether he understood what a Sufi Muslim was. He asked whether that was the name of a man. He was asked whether he understood Sufism. He said he understood it as ‘Khalifi’; they were peaceful religious people. He was not one of them; he was Tabliq. There were no questions arising and that completed this appellant's evidence.

Appellant MW

13.        The appellant was examined in chief by Ms Short. She gave her evidence in Somali through the court interpreter. She confirmed her address in Bristol. She confirmed that she recalled the statement she had made to the solicitors and that she had told the truth for that purpose. She confirmed the signature at the end of the statement was hers and that she would tell the truth to the tribunal.

14.        The appellant stated that she had travelled from Bristol for the hearing with her husband and their three children. She said she would have struggled without him. She was asked how she would have managed to carry their children if she had been on her own and she stated that two were in a pushchair and one was holding her hand. She was asked what would happen if she arrived in Mogadishu with the children. She stated that people in Mogadishu did not use pushchairs. She would be unable to carry her three children without one. She was asked where she bought her children's clothes from. She replied she bought them from Asda, Next and H&M. She was asked whether she had any Islamic clothes for the children and she replied in the negative.

15.        The appellant was asked about her religion. She stated that she was a Muslim. She described herself as a normal Muslim and not like Al Shabab. That completed examination in chief.

16.        The appellant was then cross-examined by Mr Staker. She stated that she knew nobody in Somalia and had no friends or family there and no contact with anybody else. She knew some Somali people in the UK but had no family here. As far as she knew her husband had no family either and did not know many people here. She was asked what her knowledge of Somalia was and she replied that she heard on the news that there were killings and chaos. It was put to her that the Tribunal had not considered it credible that she did not know which clan she belonged to. She repeated that she did not know.

17.        The appellant confirmed that she had arrived with entry clearance as a spouse in 2006 and that she left her first husband in May 2007. She moved in with her current partner although they subsequently had an argument and she moved out. Although they later reconciled and had an Islamic marriage, they had not lived together since. She stated that in April 2008 he was registered as the father of her first child and that her two younger children were also his. She confirmed that at the time of her initial hearing she was in an ongoing relationship with her partner. She stated that she disagreed with the finding of the Tribunal that it was not a strong relationship. When she was asked why they were not living at the same address, she stated that it was the government's job to put them in the same house. She was asked whether she had applied for housing so that they could live together and she replied that they were going to do that; they received an application form yesterday. That was despite the fact that they had reconciled in 2008.

18.        The appellant stated that she had been looked after by her aunt in Somalia and they maintained contact after the appellant came to the UK and whilst she was still married to her first husband but when they had separated he retained the contact details. She stated she had no other way to contact her. Her aunt's son lived in Canada but there was no communication between them. The appellant was asked about the time when she had left her current partner in 2008. She said she had met a family on the street and had gone to live with them. It was put to her that that did not sound credible. She maintained her reply.

19.        The appellant was asked about her comment in paragraph 12 of her witness statement and she was asked to clarify whether she meant most or all girls were circumcised. She said girls were circumcised. The question was repeated and she replied that all those that she knew had been circumcised. She was asked whether she knew of anyone who was called names for being uncircumcised. She replied "they would say bad things to you if you were not circumcised". She was asked whether that meant that she knew people who were not circumcised. She stated that everyone was. She explained in her culture it was a shame not to be. She was asked whether she knew of any Somalis opposed to the practice. She replied that it was forbidden in the UK but it was permitted in Somalia. The question was repeated and she gave the same answer. It was put to her that people could still oppose the practice even if it was the norm. She stated that it would be shameful not to be circumcised. She was asked whether she knew of anybody in the UK who opposed the practice or whether it was just the law that stopped them from having their daughters circumcised. She stated that in Somalia people were circumcised by unprofessionals. She was asked what the attitude of the Somali community was here. She stated that people followed the law. She was asked whether Somalis here would consider circumcision if they were able to. She replied in the negative. She was asked whether she knew of anyone who opposed the practice and she stated she did not. She repeated that all females in Somalia were circumcised. The appellant was asked who would place pressure on her to have her daughters circumcised if she had no family or clan links in Somalia. She replied that it was their tradition and if she did not do so "everyone" would say "bad words".  She was asked who she meant. She stated "everywhere you go people would say it". She was asked how anybody would know. She stated that there were no private toilets and showers, children played and urinated outside and it would become known. She was asked whether there would be any other consequences apart from the calling of names. She replied that it would be shameful. She was asked who would be able to force her to have her child circumcised if she refused to do it. She replied that it would be degrading for her child and she would be depressed. She was asked what she would do if she had to choose between having the procedure done and being called names. She replied she would have her daughter circumcised.

20.        The appellant was asked whether she was aware of the support available to Somalis who returned voluntarily. She said she was not. It was put to her that the VAR programme provided funds and assistance. She stated that she did not need to contact them.

21.        The appellant was asked whether there was any reason why Al Shabab would be displeased with her if she returned to Somalia. She stated that they would be able to differentiate between those who had remained in Somalia and those who returned there. It was put to her that she did not have any information about what happened to people who returned. She replied that she was aware that there were killings, torture and looting every day. She was asked whether there was anything contrary to her religion if she did what Al Shabab wanted to do. She replied that they forced people to do things and people preferred to dress the way they wanted to. She was asked whether she would be able to look like someone who had never left Somalia and she replied that this would not be possible because with children one could not pretend. The question was repeated. She stated that people in Somalia looked rough, they were starving and so it would not be possible to look like them. It was put to the appellant that there were women in Somalia without husbands who were able to look after their children. She replied that those women had families and clans and she did not.

22.        In re-examination the appellant stated that her accommodation was paid for by NASS and that her husband received housing benefit. She stated that she did not experience any difficulties regarding the payments that she received.

23.        In response to questions from the Tribunal, the appellant stated that her husband had left the Wilson Street address in 2008. When asked why he had left, she replied that it was because the accommodation was a bedsit. She was asked whether that was where she had lived with him. She stated it was not, they had lived together somewhere else. It was put to her that Wilson Street was the address where they had married and she was asked where it was that she had then lived. She then said that she had lived there with her husband but they then moved to another address. She stated that he had left Wilson Street for health reasons. She was asked whether it was shameful amongst the Somali community in the UK not to circumcise daughters. She replied that it was not allowed here but it was done in Somalia where there was only one culture. She was asked how it was that the culture changed just by being in the UK. She stated that people were not forced here and it was not shameful. The government would detain people who carried out the procedure on their children. In the UK it was normal not to carry this out and there were no problems for uncircumcised girls to get married. That completed this appellant's evidence.

Oral evidence of appellant MW’s partner

24.        The witness, partner of MW, gave his other name as AMM and his address. His evidence was given in Somali. He confirmed that he had been telling the truth when he prepared his statement but said that he had been on medication at the time. He was asked whether the medication had any impact on his memory and he replied that he took the medication for his memory. When this was queried, he replied that he suffered headaches so he took the medicine. He had sustained an injury which affected his nervous system. He confirmed that it was his signature on the statement and that he would tell the truth to the Tribunal.

25.        The witness was asked whether he would be able to support his partner if she were returned to Somalia with the children. He said that he received income support, had no other source of income and had no money to send them. He was asked whether he had ever sent money to Somalia. He said he had sent money to his mother on two occasions. He was asked where she had been living and he replied she had been in Ethiopia but because she was attacked there, she had returned to Somalia.

26.        In cross-examination the witness confirmed that he had given evidence for his partner at her earlier appeal. He was asked whether he had been aware that he was found to have been a witness not capable of being believed. He said he had not known this. He was asked whether he had lived with his partner from 2007 until January 2008. He confirmed that he had and added that people ‘could fight’. He was asked whether he and his partner had reconciled at the time of her appeal and he confirmed that they had. He was asked why they had not lived together since then and he replied that he lived in a one-bedroom place with elderly people. He was asked whether he had made attempts via the authorities to be re-housed with his family. He stated that they had received a form this week having advised their solicitor that they wanted to be together. He stated that no children were allowed where he was currently living. He was asked why it had taken from September 2008 until now to take steps to be re-housed. He said it was due to his lack of experience and because he did not speak the language. There was nobody that he could have asked. He was asked why he and his partner had not married under British law. He stated that he did not know how to do that as he did not know the language. He said he did not know many Somalis in the UK and he did not know of anyone sending money back to Somalia.

27.        When asked about his views on FGM he stated that he did not want his daughter to be circumcised and that he was strongly opposed to the practice. He was asked whether he knew of any others who opposed it and he replied that he did not want it for his daughter. He was asked what the attitude towards circumcision was in Somalia and he replied that there were bad people there who forced others into it. He was asked who would be able to compel them to have the procedure done on their daughter if they opposed it. He replied Al Shabab would. It was put to him that he need not be in an Al Shabab area. He replied that he had lived in Mogadishu. To his knowledge all of Mogadishu was controlled by Al Shabab.

28.        In response to questions from the Tribunal the witness was asked what clan he came from. He stated that it was not a clan that had any power. The question was repeated. He stated that he did not know. He was asked whether he had opposed FGM whilst he lived in Somalia. He replied that his religion said that no looting was allowed. The question was repeated. He replied that he believed it was wrong. He was asked whether he would have been willing to marry a woman who had not been circumcised and he said he would.

29.        The witness was asked when he had left his earlier address. He said he could not remember. He had lived on the top floor and had been offered a ground floor flat because of health problems. It was put to him that he had been divorced in the UK under British law. He asked "what divorce?". He was reminded of what he stated in paragraph 3 of his witness statement. He said he had not divorced MW. He was asked whether he had been divorced and he said he had. He was asked whether the divorce had taken place through the British courts. He said he received a letter and signed it. He was asked how he had known what to do with it. He stated that he had been helped by a Somali lady. He was asked how it was that he did not know how to get married yet knew how to get divorced. He stated that his former wife had brought him here and she knew how the system worked. She was the one who had contact with the courts and when he received a letter a man had helped him. There were no questions arising and that completed the evidence of this witness.

Appellant ZF

30.        The appellant gave evidence in Somali through the court interpreter. Examined by Mr. Schwenk, the appellant confirmed her Newcastle address and agreed that she had made the statement dated 31st May 2010. She was asked whether it was right, as stated at paragraph 12 of that statement, that she had been raped by Al Shabab militia. She stated that she had been raped but as she had been in a state of confusion she did not know who had been responsible. Subject to that amendment she adopted the contents as being true and accurate.

31.        The appellant was asked about her religion. She stated that she was a Muslim. When asked what type of Muslim she was, she replied she was “just a Muslim”. She was asked whether she followed the same form of Islam as other Somalis and she said she was a genuine Muslim. The question was put again; she gave the same reply. She was asked whether she had ever worn clothes that covered her face and she replied in the negative. She said she was elderly. She did not know why people covered their faces. She wore a bra. She had been married but her husband had been killed ten years ago. She had a daughter but she had left Somalia in 2000 and they had not had contact since then. She then amended that to 2002. She said she had no idea of the whereabouts of her daughter. She knew no one in Somalia. There was no one who could obtain a passport for her. She had no form of travel document. She was supported by NASS and had no savings. She had not been asked by the Secretary of State to complete any kind of application form for a travel document.

32.        The appellant was then cross examined by Mr Staker. It was put to her that the position of the elderly in Islam was one of respect. She disagreed. She was asked whether she had a clan attachment. She stated she was from a minority clan. She had no family at all in Somalia. She had not had any siblings; she then amended this evidence and said she had had one who had left Somalia. There had been an uncle but he had health problems and she did not know whether he was alive or dead.

33.        The appellant was asked about her health. She said she had difficulties walking. It was put to her that the only letter in relation to her health was a letter from her doctor which was written for accommodation purposes. She confirmed she had headaches and pains in her thumb and foot. It was put to her that the other problems she complained of in her witness statement – heart problems, high blood pressure, asthma and severe arthritis – were not mentioned by her doctor in his letter. She maintained she had told the doctor about those problems and could not explain why they had not been included. She stated she was on medication. She had no other documentary evidence of her ill health.

34.        The appellant said that she disagreed with the findings of fact made by the Tribunal. She was from a minority clan and had lived in Mogadishu. After she was widowed she lived in Hamar Weyne and then in a refugee camp near Afgoye. She said she could not recall when her daughter had left Somalia; it was 2001 or 2002. They had lost contact with each other. It was put to her that that was remarkable given the evidence of the extent of communication between those who had left and those who remained. The appellant replied that her daughter was not in Africa; perhaps she was in Europe. She agreed that it was unusual for there to be no contact but she could not explain the lack of communication.

35.        The appellant stated that the $3000 she had spent on her journey came from jewellery that her husband had bought for her. It was put to her that she had survived alone for some eight years. She said she had been able to do so by moving from place to place however she had been persecuted and raped. She was reminded that that part of her account had been rejected by the Tribunal. She made no comment. It was put to the appellant that she had been able to make a long journey alone via Ethiopia. She replied by stating that she had no protection and would be killed if she returned.

36.        The appellant was asked whether she was aware of the Voluntary Assisted Returns Programme (VARP). She repeated her previous answer. The question was put again. She said she had not heard of it. It was put to her that assistance was made available through the programme not only for the journey but also to contact family and that she would be given £1500. She stated she could not go; there was no protection in Somalia and there were rapes and killings. She was asked whether she kept abreast of the situation in Somalia. She said that she did not see many Somalis in the UK but she knew the situation in Somalia was unstable. She was asked for the source of her information. She said that there was no Somali community in Newcastle but she knew it was not safe to return. She was asked whether she had heard that 40% of the population in Mogadishu lived under TFG control. She said she did not know that. She also said she was not aware that Hamar Weyne was under TFG control. It was put to her that the evidence did not indicate a high level of violence in Hamar Weyne. She maintained that her clan faced problems on a daily basis. She was asked whether she had been aware that the Afgoye corridor had become more urbanised and permanent. She said she had not. She was asked whether she was aware that it was possible to fly directly to Somaliland. She said she was not from Somaliland. She was asked whether she was aware that the situation in Al Shabab areas varied from district to district. She said she had not heard anything about that but maintained that Al Shabab controlled most places. It was put to her that some areas had more lenient requirements than others. She said she was elderly and had health problems; she was not aware of what was happening in Somalia. It was put to her that she was no different from other Muslims and so she should have no problems with Al Shabab. She stated she could not return. If she did, she would have problems. She did not know anyone who had returned and she agreed she had no personal knowledge of what would happen on return.

37.        The appellant was asked whether anything Al Shabab might ask of her would be contrary to her religion. She maintained that she was happy with the way she currently dressed and that Al Shabab forced women to cover their faces and body and wear gloves.

38.        She stated that her husband was from the Bandhabow clan.

39.        In re-examination the appellant said that she would not cover her face; if she had to, she would feel frustrated. She stated that her uncle would be around 70. She then said that she had been 65 when she left Somalia two years ago and her uncle was 78. She repeated that she did not know what had happened to her daughter.

40.        In response to questions from the Tribunal, the appellant stated that her daughter left Somalia after the death of her father (the appellant’s husband). She did not live with her in Afgoye. She fled with other people. It was said she was going to the UK. The appellant had not been able to accompany her because she had no money and had a bad back. She was reminded that she had said that she had jewellery. She then said that the situation had been chaotic and she had been unable to sell it. When asked why it had taken her some seven years to leave Somalia after her daughter’s departure, she said that there had been no market for her jewellery and besides, she was looking after the two children of her deceased sister.  When asked what had happened to those children, she said that she had asked people to take them to Kenya because she had health problems. Some nine months later, she left.  The appellant said that her health problems began after she had been beaten and raped ten years ago. She said that she had been supported by aid organisations in Afgoye and in Mogadishu other people had helped her. The money for her daughter’s travel had been raised by her clan and her late husband’s clan. It was pointed out to her that although she stated that there was no Somali community in Newcastle, the letter from her doctor specifically requested that she be moved to Newcastle in order that she could be near the Somali community. She was asked whether she was in contact with them. The appellant then agreed that there was a Somali community in Newcastle but she stated that she received no help from anyone. She was asked whether she was in contact with them and she admitted she saw some of them.

41.        It was put to the appellant that she had stated in her witness statement that her husband had been killed by Al Shabab. She was asked whether that was correct. She replied that she did not know. She said four people came to their home, killed him and raped her. It was pointed out to her that in her witness statement she expressed fear about Al Shabab because of what she claimed they did to her. She replied that Al Shabab controlled the area and killed people. She was asked whether she knew if Al Shabab existed in 2001. She replied there had been many Islamic groups. There were no questions arising and that completed this appellant's oral evidence.

Appellant FM

42.        The appellant gave evidence through the Somali interpreter provided by the court. He was examined by Mr Symes. He gave his address as 3 Ray’s Avenue and his date of birth as 5 August 1987. He confirmed that he had said in his statement that most of his friends had left for Kenya. He was asked what had happened to his other friends. He replied what he had meant was that he did not know about the others, only about those with whom he had contact. He was asked how he would support himself if he returned to Somalia. He stated he could not return as he had no employment and there was no stability. He was asked whether he would look for work if he returned to Hamar JaabJab. He stated that he would not be able to look for work because jobs were organised by clans and given to people who belonged to the clans concerned. It was put to him there was a port in Hamar JaabJab and it was asked whether he would be able to find work there. He stated that it was controlled by major clans and other clan members would be unable to find work there.

43.        The appellant confirmed that he followed the Sufi sect. He said he had always done so and his family were Sufis. He was asked for an example of what this meant in practice. He stated that Sufis commemorated certain saints and visited their graves. He said they were very religious people. He had visited the graves of saints whilst he was in Somalia but this had been before Al Shabab took control. He also used to go to the mosque to commemorate the Prophet’s birth. He was asked how he followed the Sufi faith in the UK. He stated that every year there was a celebration and people gathered together and had a drink, prayed and speeches were given. This was known as Digri. It was specific to Sufism and was an important part of his life.

44.        The appellant was asked whether his appearance had altered since he had arrived in the UK. He said it had. He was asked to describe in what way it had changed. He stated that he had been slim, younger and had not had any grey hair when he came here.

45.        In cross-examination the appellant confirmed that he had lived in Hamar JaabJab all his life. It was put to him that there would have been a lot of fighting in that area and he agreed that was correct. He was asked how it was that his family had never moved out of the area despite the conflict. He then said that they had moved temporarily when there was fighting and that they then moved back when the situation had stabilised. He was asked whether they had moved to a different district of Mogadishu. He replied they sometimes went to Hamar Weyne. He was asked whether it had always been possible to move away and he replied in the affirmative, adding that lots of families did the same.

46.        It was put to the appellant that the Tribunal had found that he and his aunt had been able to enjoy sufficient protection in order to keep their assets safe during the war. He confirmed that the aunt had been his father's sister and said that they had land attached to that mosque and that the people in the mosque had looked after it. People knew his father who owned the land. He now had no family left in Mogadishu and his aunt was in Kenya. He was asked whether he had any clan connections and he said that he did not know anybody in Mogadishu. The appellant was asked whether there was anyone at the mosque who still knew his father. He said that they knew his aunt and that he had no connection with them. He agreed he had Somali friends in the UK.

47.        The appellant was asked whether he was aware that 80% of the population of Mogadishu lived in TFG controlled areas. He said that he had not been aware of this. He was asked whether he had been aware that Hamar JaabJab was currently under TFG control. He replied that he heard government forces came in during the day but that during the night others would come. He was asked whether he was aware that there was not a high degree of conflict in Hamar JaabJab. He replied that it was similar to other districts and that nowhere in Mogadishu was safe. He was asked whether he was aware that a lot of people lived there and made a living. He maintained that those people had connections with their clan and had money so they were safe. He said without that, one was not safe. He added that if someone agreed with Al Shabab then they would have no problems. The appellant was asked whether he was aware that there were places in Somalia outside Mogadishu that were not controlled by Al Shabab. He stated that he listened to the news and watched television and that it was important to have a clan connection as without it survival was not possible. The question was repeated. He agreed that there was no conflict in Somaliland. It was put to him that they were even areas without fighting in central and southern Somalia. He stated that he was not sure of that and gave an example of a man from the south who went to the central area to work as a butcher a few months ago. He stated that some livestock went missing and this man was accused of being responsible because he was an outsider and he was killed.

48.        The appellant was asked whether he was aware that there were minibuses for internal travel. He said he only knew of travel by lorry. He was asked whether he was aware that people travelled between TFG and Al Shabab controlled areas. He stated that if someone did this they would be suspected and killed. He was asked whether he was suggesting that this happened to anyone travelling from one area to another. He said that he meant only those who were new and had not been seen before would be at risk.

49.        The appellant was asked whether he had heard of the voluntary assisted returns and reintegration programme. He said that he had heard a lot about it. He confirmed he was aware of the available assistance. He was asked whether he would seek such assistance if he returned. He replied that if he had to return he would kill himself.

50.        The appellant was asked whether there was anything different between him and any other Sufi in Somalia. He stated that Sufis were all the same. He was asked whether there was any reason why Al Shabab would target him as opposed to any other Sufi. He stated that Al Shabab members had gone to the graves of saints and had dug out their bodies. He said they did not permit anyone to visit the graves or celebrate. He said they had placed a bomb in a Sufi mosque and many people had been killed. The appellant was asked whether he was prohibited by his religion from having a beard. He stated that he was not. He was asked whether Al Shabab would require him to do anything that was contrary to his religion. He stated that the disagreement between the Somali people and Al Shabab was that the latter wanted to make rules about how to dress whereas the former wanted freedom. He was asked whether he knew of anyone who had been killed for not having a beard. He said that he had heard of this. He added that they gave people a hard time and beat them.