Sharif Ali v Secretary of State for the Home Department [2005] EWCA Civ 1699

Case No C5/2005/1697

[2005] EWCA Civ 1699

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL

(G. WARR, SENIOR IMMIGRATION JUDGE)

Venue Royal Courts of Justice

Date Thursday, 10th November 2005

Strand

London, WC2

B E F O R E:

LORD JUSTICE SCOTT BAKER

Between

MOHAMMED SALAH SHARIF ALIAppellant

-v-

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

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MS MELANIE PLIMMER (instructed by Messrs Jackson & Canter, 88 Church Street, Liverpool L1 35D) appeared for Applicant

for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]The applicant is a citizen of Somalia, aged 63. He entered the United Kingdom illegally on 30th June 2002 and claimed asylum on 3rd July of the same year. On 11th September of the same year, he was granted exceptional leave to remain for one year but a further extension was subsequently refused.

[2]The Secretary of State rejected the applicant's asylum claim. In summary, he accepted that the applicant was a Somali national; he did not accept that the applicant was a member of the minority Ashraf clan; he considered that the applicant would be able to return to Somalia and live safely in an area controlled by his clan where he would enjoy their protection and he considered that the applicant would not be at risk of persecution over and above a general risk inherent to all Somalia citizens -- such a random risk, though real, would not amount to persecution under the convention; and he denied that the removal of the applicant, in accordance with the removal directions, would breach the United Kingdom's obligations either the Refugee Convention or under the Human Rights Convention.

[3]The applicant appealed to an adjudicator. She did not believe that the applicant was a member of the Ashraf clan. She said, at paragraph 20 of her determination:

"As to the appellant's claim to be a member of the Ashraf clan, his account is consistent with the objective evidence as to the maltreatment suffered by minority groups in Somalia. Indeed, it is common ground that members of minority groups such as the Ashraf continue to be subjected to killings, harassment, intimidation, and abuse by armed gunmen of all affiliations. However, in oral evidence he was unable to give full details of the sub-clans of Hassan: he stated that two sub-clans were Sarman and Ibrahim, but did not know any others. As to sub-clans of Hussein, he was unable to name any. Whilst he explained that this was all his parents had taught him and, prior to the civil war, he was not interested in clan structure. I do not accept that a member of the Ashraf Sarman would be unable to give a more detailed explanation of clan structure or, indeed, the history of the Ashraf clan, or that he would make mistakes as to the other subclans of the Hassan subclan. The Ibrahim are not a Hassan sub-clan; indeed, the only mentions of Ibrahim in the Home Office's list of Somalia clans are as a sub-clan of the Harti/Darod and as a subclan of the Sambur."

And she said, at paragraph 22, that, on the totality of the evidence, she was not persuaded that the applicant was an Ashraf or indeed a member of any minority group and that, accordingly, he had failed to discharge the burden of proof.

[4]Ms Plimmer, who has appeared for the applicant, submits that there was objective evidence before the Adjudicator indicating that not every Ashraf would be expected to be able to give details of all the sub-clans. She submits that the Adjudicator has committed an error of law in reaching the conclusion that she did in not believing the applicant because she failed to take into account the wider picture.

[5]In my judgment, such a submission is completely unsustainable. This is quite plainly a finding of fact on the part of the Adjudicator that she was fully entitled to make. Absent any error of law in her determination, the Tribunal had jurisdiction to entertain an appeal from her. In my judgment, there was no error of law.

[6]Ms Plimmer does not stop there because she submits that there was also an error on the part of the Adjudicator in failing to conclude that an Article 3 claim was engaged because the applicant had special circumstances, including his age, that would justify a finding that to send him back to Somalia would breach Article 3, even if it did not breach the refugee convention. The Adjudicator dealt shortly with this argument at paragraphs 23 and 24 and, in my judgment, was fully entitled to reject it.

[7]Mr Plimmer also seeks to raise other errors of fact and to elevate them into errors of law. In my judgment, she cannot even get to first base in seeking to do so. The Tribunal, in rejecting permission to appeal, said the grounds of appeal are a factual challenge, rather than a legal challenge. Laws LJ, in refusing permission on paper, said much the same. Undeterred, Ms Plimmer has nevertheless sought and has argued vigorously that that conclusion all along the line is wrong and that there was here an error of law.

[8]Despite the force and persistence of her argument, I am quite unpersuaded. This, in my judgment, is simply another of the many attempts that this court sees to elevate disagreements with findings of fact into errors of law. There was no error of law in this case and accordingly the application for permission to appeal is refused.

Order

Application refused. Order for public funding given.