Mahamoud v Secretary of State for the Home Department [2005] EWCA Civ 370

Case No C4/2004/2092

[2005] EWCA Civ 370

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL

Venue Royal Courts of Justice

Date Wednesday, 16 February 2005

Strand

London, WC2A 2LL

B E F O R E:

LORD JUSTICE AULD

LORD JUSTICE CHADWICK

LADY JUSTICE ARDEN

Between

LAYLA ESSE MAHAMOUDAppellant

-v-

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

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MR RONAN TOAL (instructed by Messrs Wilson & Co, London N17 8AD) appeared for Appellant

MR ROBIN TAM (instructed by Treasury Solicitors, London SW1H 9JS) appeared for Respondent

J U D G M E N T

Wednesday, 16 February 2005

LORD JUSTICE AULD:

[1]The applicant, Layla Esse Mahamoud, is a national of Somalia who claims to be aged about 19. She seeks permission to appeal to the court from a determination of the Immigration Appeal Tribunal of 19 August 2004. The Tribunal had dismissed her appeal from a determination of an adjudicator on 27 October 2003. The adjudicator had in turn dismissed the applicant's appeal against illegal entrant removal directions of the Secretary of State. Hence, the applicant's appeal to the adjudicator on both asylum and human rights grounds.

[2]The central issue on this application is whether the Immigration Appeal Tribunal made an error of law in concluding that the adjudicator had not erred in law in concluding that the applicant's circumstances were such that she would not face a real risk of sufficiently serious harm on her return to Somalia.

[3]In June 2003 the applicant, after entering the country illegally, sought asylum and the right to remain under Articles 2 and 3 of the European Convention on Human Rights. The Secretary of State, in a comprehensive decision-letter, refused her applications and issued a notice of his intention to remove her. At paragraphs 21 to 23 and 27 he expressly addressed her concern that there was a civil war in Somalia at the material time and the impact, if any, that that had on her human rights claim. He concluded that he was not satisfied that she was at a particular risk in Somalia over and above that faced by anyone else in that country if she were to be returned there, which was and is the appropriate test for the Secretary of State.

[4]The applicant then appealed to an adjudicator both under refugee grounds and human rights grounds. In a short skeleton argument in support of the application prepared by her then counsel (who does not appear for her today) she set out in exiguous terms her asylum claim and her human rights claim, the latter expressed in short terms that she had been raped whilst in Somalia, threatened and beaten by a particular man, and that she feared that upon return she would face the same sort of treatment. That was the extent to which the applicant deployed the human rights claim to counsel on her pleaded case before the adjudicator.

[5]When she gave evidence to the adjudicator she spoke of harassment and violence to her and her family in Somalia over a five-year period, extending from early 1998 to 2003, culminating in February 2003 by an attack, including rape, which precipitated her leaving the country and coming here to claim asylum and protection under the Human Rights Convention. The account that she gave, which is fully rehearsed by the adjudicator in a careful determination, was essentially one of personal attacks upon her and her family in the early part of 1998 emanating from a member or members of sub-clan of the appellant's clan, initially taking the form of an attack in early 1998 upon her family's house, prompting her and her mother to run away and resulting in one of her cousins being shot. She said that, as a result of that incident, she had been robbed on route and had been beaten on her return.

[6]Then for a period up until 2003, the remainder of the five-year period, she spoke of being harassed in 2001 by the sub-clan members, in particular by one of them who wanted to marry her. After, having married someone else, she was then threatened by the same man with a gun towards the end of 2001. The next incident of which she spoke was in February 2003, of having been abducted by members of the sub-clan while shopping and having been raped and cut. So, this was her account, not, by reference to the situation generally in Somalia - unrest, general disorder as a result of civil war - but of attack and harassment of her and her family, a large part of which, certainly in a five-year period, resulted from her rejection of a suitor and reprisals as a result.

[7]The adjudicator, whilst accepting her account of the initial attack in 1998 causing her mother and her to flee - although with some hesitation as is plain from the way in which the adjudicator expressed her findings on the matter - disbelieved all her evidence relating to harassment and violence and allegation of rape in relation to the ensuing five-year period. In summary, she said that she did not find the applicant's claim over most of the material period - late 1998 to 2003 - to be credible. As to the events before that, she found that the incidents complained of were more concerned with the civil war and inter-clan matters than persecution; and that the applicant had not established by reasons of her ethnicity to the appropriate level of proof that she was at real risk of persecution. As to the later claims extending over the five-year period she did not accept her truthfulness. Accordingly, the adjudicator dismissed her asylum appeal.

[8]As to the applicant's human rights appeal the judge said that it raised the same basic issues as the asylum claim. As to her claims as to her current circumstances, including her relationship with her brothers, in this country, the adjudicator found no evidence of dependency on them or that she had established a family life with them here. She concluded in the circumstances that it would not be disproportionate to return her to Somalia.

[9]I set out - because it is a matter of some textual examination by Mr Ronan Toal, for the applicant, in support of his submissions - the exact words of the adjudicator in parts of paragraph 30, 31 and 32 of her determination letter:

"30. Viewing her claim as a whole I do not find it to be credible as to events since she and her mother returned from Ethiopia [in 1998]. I have some doubts about the attack on their home and the death of her cousin but I am not sure about these. I do not find that she has established to the appropriate standard of proof that she is the age that she says she is. I specifically reject her claim that her husband left Somalia because he was threatened by a member of the Habr Gedir who had been pestering the Appellant to marry him and I do not find credible her story about the rape of her friend and herself at the hands of the Habr Gedir.... Whilst the objective material shows that there has been and continues to be interclan rivalry the Hawiye are a major clan [of which the applicant claimed to be a member of a subclan] with their own militia and methods of protection against rival clans. The general focus of the claim by the Appellant has been about the activities of one particular member of the Habr Gedir supported by a group of others. The events prior to the departure of the Appellant and her mother for Ethiopia in 1998 are more concerned with civil war than persecution. I do not find that the ethnicity of the appellant on its own means that she had established to the appropriate standard of proof that she is at real risk of persecution and I do not accept the truthfulness of her account of later events. 31. I find that the Appellant would not be at real risk of persecution should she be returned to Somalia because of her ethnicity as a member of the Murosade sub clan. The risk to her is because of a civil war situation and this is not one recognised under the 1951 Convention. I dismiss her asylum appeal. 32. [The applicant's counsel] has also submitted that returning the Appellant to Somalia would violate her rights under Articles 2 & 3 and 8 of the ECHR. The appeal under Articles 2 and 3 raises the same basic issues that have already been raised and considered when dealing with the asylum appeal. It therefore suffices to say that for the same reasons as set out above, the Human Rights appeal is in relation to those Articles is also dismissed."

[10]So, at the heart of the adjudicator's reasoning in rejecting both the asylum appeal and the human rights appeal was her finding that she simply did not believe the applicant's account of the matters that she said gave her fear in the five years or so before she fled to this country; and the adjudicator set out, with some considerable care, in paragraphs 14 to 28 of her determination why she did not believe her.

[11]The applicant applied to the Immigration Appeal Tribunal for permission to appeal. She focused principally on the asylum claim, raising the point that she had a reasonable fear of persecution by reason of being a member of a particular social group, namely one of a group of young women from Somalia who were particularly at the mercy of what was going on in that country at times of unrest and because of her own particular family circumstances. She also relied upon a brief but barely recognisable separate human rights claim, namely that she would be at risk if returned to Somalia as a lone female when it was in a state of civil war.

[12]The Tribunal refused her application. It held that, on the issues of fact that had been put before the adjudicator, there was no basis upon which it could say that the adjudicator's determination disclosed an error of law. The adjudicator had disbelieved her claim that she was a member of a particular social group with cause for fear on Convention grounds. In summary, the Tribunal found that there was nothing to indicate that the adjudicator's finding in that respect was plainly wrong or unsustainable. Following the Tribunal's refusal, the applicant now seeks permission from this court.

[13]Mr Toal has submitted that the adjudicator erred in law in concluding that the applicant was not specifically at risk of any harm in Somalia, only that she would not be at any risk for the purpose of an asylum claim because of her ethnicity as a member of a particular clan. He drew attention, with some emphasis, to the wording of the adjudicator's reasoning in paragraphs 30 to 32 of decision-letter, to which I have referred. He said that having found that the applicant faced a risk because of a civil war in paragraph 30, she was bound to go on to make a reasoned assessment as to what that risk amounted to; whether, if it came about, it would be sufficiently serious so that removing the applicant to face it would amount to inhuman or degrading treatment in Human Rights terms, and also to assess the degree of likelihood that it would come about. Mr Taol relied on passages from the judgments in Curran v Curran and Robinson, the latter to which I shall return. He said that, given the adjudicator's reference to the civil war, she should have considered these matters in detail, regardless of the detail, or lack of it, which the applicant had put before her. He said that, in consequence, the Immigration Appeal Tribunal, in concluding that it had no jurisdiction to consider the appeal because it was of the view that the adjudicator had made no error of law, was also in error, thus entitling the applicant to come to this court.

[14]The difficulty in the applicant's case has been well and succinctly identified by Mr Robin Tam, for the Secretary of State, in his submissions to the court. There is no doubt that there is an obligation on an adjudicator, or at next level an Immigration Appeal Tribunal, to consider matters that, even if not put before either of them respectively, are of such a nature on the material available to them that it is obvious that there is a point with a strong prospect of success worthy of investigation, whether it be the adjudicator or the Tribunal on it own initiative. But, on the authorities to which we have been referred, such an obligation only arises where the point is plainly discernible and gives a strong prospect of success, or the Tribunal considers that it may have a strong prospect of success if developed before it. That simply was not the case here. It did not form the focus of the submissions and evidence to the adjudicator. The adjudicator in her findings did not consider the matter in any more detail than she did because she was directed by the presentation of the case in the applicant's complaints to whether she had any ground for fearing for her personal safety in the preceding five years before she fled, whether on grounds of ethnicity or otherwise.

[15]The adjudicator noted that there was a civil war in Somalia and to that extent the applicant would be at risk. But there was no basis upon which she should have been alerted to the possibility that the risk to the applicant was anything out of the ordinary, which was, as I have indicated, the test applied and identified by the Secretary of State in his decision-letter. That was not a finding that the applicant through her evidence sought to challenge in the course of the proceeding before the adjudicator. It was barely identified on her application to the Immigration Appeal Tribunal. There are shades even today in the submission put to the Court of an elision between the two complaints, the one under the Refugee Convention and the other under the European Convention on Human Rights.

[16]The governing test that I have attempted to summarise is to be found in the words of Lord Woolf in R v Home Secretary,ex parte Robinson

[1998] QB 929

, where he said:

"Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the Tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely "arguable" as opposed to "obvious"

. Similarly, if when the Tribunal reads the Special Adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the Tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the Grounds of Appeal to the Tribunal had a strong prospect of success if leave to appeal were to be granted."

[17]That was a Refugee Convention case, but it is plain that what Lord Woolf said there is of equal application to human rights cases, and is also a matter which the Secretary of State should have in mind at the end of the day before ordering removal if some new and obvious point of the sort mentioned by Lord Woolf is to be taken into account. There is a further safeguard there, so far as I understand it, in that his final decision in that respect may be susceptible to judicial review.

[18]Given the Secretary of State's reasons for rejection of the human rights claim here, and the failure of the applicant or those representing her to take the point before the adjudicator or to draw it to the attention of the adjudicator in the course of the hearing through her evidence, it cannot be said that the point that Mr Toal seeks to argue by way of criticism of the adjudicator and also of the Immigration Appeal Tribunal is a point which leaps out of the pages or which has a strong prospect of success. It was plain from the adjudicator's findings on the facts that her rejection of the applicant's evidence of the only matters of which she had complained over the previous five years were matters of a personal nature which in themselves had no close relationship to the civil war in Somalia and the unrest there, and were all matters that the adjudicator rejected as a matter of fact because she did not believe they happened. In these circumstances, any claim that might have been advanced by the applicant by way of a human rights alternative was bound to have been equally rejected. That is clearly what the adjudicator had in mind in paragraph 32 of her determination when she said that the appeal under Articles 2 and 3 of the European Convention on Human Rights raised the same basic issues; basic in the case as presented to her whether what the applicant had complained of was true.

[19]For these reasons I would refuse this application.

LORD JUSTICE CHADWICK: I agree.

LADY JUSTICE ARDEN: I also agree. I would add that Mr Tam very properly accepted that even if this application was dismissed the Secretary of State would continue to be under an obligation to ensure that this country did not violate its obligations under Article 3 up to the time at which the appellant left the jurisdiction pursuant to the Secretary of State's removal directions. (Application refused; detailed assessment of costs).