Ahmed v Secretary of State for the Home Department [2005] EWCA Civ 636

Case No C4/2005/0610[2005] EWCA Civ 636
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Wednesday, 18th May 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE BROOKE
(Vice President of the Court of Appeal, Civil Division)
Between
MUSTAFA MOHAMMED AHMEDAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR B BEDFORD (instructed by Messrs Sultan-Lloyd) appeared for Appellant via Videolink
J U D G M E N T

LORD JUSTICE BROOKE:

[1]This is a renewed application for permission to appeal against a decision of the Immigration Appeal Tribunal which was notified on 25th January 2005, whereby it dismissed the appellant's appeal from a decision of an adjudicator on 24th October 2003. The adjudicator, in turn, had dismissed the appellant's appeal from the decision of the Secretary of State on 9th June 2003 to refuse asylum and to refuse leave to enter.[2]The appellant is a native of Somalia, where he was born in 1985, so he is now about 20. He arrived in this country on 5th October 2002 and claimed asylum six days later. He is a member of the Eyle sub-clan. He fled Somalia with his parents in 1991, when he was about five years old, after his parents' shop had been looted and their home ransacked. He travelled to Ethiopia and they lived in a refugee camp in Ethiopia. In paragraph 5 of their determination the Tribunal described all the attacks on refugee camps in Ethiopia by militia, and particularly the way that militia, mainly from the Hawiye clan, had not only attacked the camp and looted belongings, but had treated members of the appellant's family in a barbarous way. After the militia had raped his mother and sister in May 2002 and because three of his brothers and his father had been "lost" to his mother, his mother was very concerned for his safety and arranged for an agent to assist him in leaving Ethiopia.[3]When the matter came before the adjudicator, her attention was drawn to two unstarred, in other words not binding, decisions of the Tribunal about risks for members of the Eyle clan on return to Somalia (as opposed to Ethiopia): one was a decision in Abdi Ali [2002] UKIAT 06665 and the other a decision in G [2003] UKIAT 00011.[4]In Abdi Ali a young woman of the Eyle clan had suffered serious ill-treatment at the hands of members of major clans, but there was no indication that members of the Eyle clan were, as at the date of that decision in October 2002, targeted by the main Somali clans. So far as they lived in unstable areas they could become the victims of armed conflicts, but there was no evidence to show that the appellant in that case had been specifically targeted and she was a member of a clan which was at no greater risk of ill-treatment than others at risk in civil war. The case of Adan was applied.[5]The case of G was rather different. That was both a human rights and an asylum appeal, whereas Abdi Ali had only been concerned with asylum. This was another young woman of the same clan. It was found that if she was returned to Somalia she would have no family support and she would be living in an internally displaced person's camp with a significant risk of violence against women (including rape), and great poverty, discrimination and exclusion. Her asylum claim succeeded, and so did her Article 3 claim for three reasons: first, that she was a member of a minority sub-clan; secondly, that she was a woman; and, thirdly, that she would be an internally displaced person.[6]The adjudicator had these matters to consider by way of background evidence. In paragraphs 16 to 23 she considered these matters. She could not see that the present appellant's claim was stronger than that of Miss Abdi Ali; if anything it was weaker. She found the appellant's case distinguishable from G, particularly given the emphasis in that determination on the risk to unaccompanied women.[7]The adjudicator, having taken into account the report on minority groups of Somalia dated September 2000, which was among the background evidence produced to her at the time of her determination in October 2003, went on:
"Although I have taken into account the Appellant's claim that his refugee camp was attacked by Hawiye militia because, albeit in Ethiopia, they were attacks by a majority Somali clan on minority groups, his account of attacks on the refugee camp by the Ethiopian militia is not relevant given that he is a Somali National and would be removed to Somalia."
For those reasons she found that the appellant had failed to establish a good ground under the Geneva Convention. So far as Article 3 was concerned, the adjudicator said, correctly, that Article 3 had a high threshold and the appellant had not adduced either objective or subjective evidence to show that he would be at real risk of suffering torture or inhuman or degrading treatment. That, on the face of it, was a decision on the facts and on the background evidence before the adjudicator.[8]On the appeal to the IAT the material ground (for the purposes of this second appeal) was that, whereas there was no challenge to the appellant's evidence that his family had been repeatedly attacked in 2002 by Hawiye militia notwithstanding that they were refugees in a camp in Ethiopia, it was said that the learned adjudicator erred in concluding that the appellant was not a refugee within the meaning of the Refugee Convention and was not entitled to protection under the Human Rights Convention because he was not a woman and because the attacks on the appellant and his family in the refugee camp in Ethiopia were irrelevant.[9]Mr Bedford has suggested that this was an attack on the ground of perversity. It appears to me to be an attack in relation to the adjudicator's failure to take into account material matters in forming a decision.[10]The IAT considered all this material and reached the same conclusion as the adjudicator. They, too, took the view that the fact that G was a woman was a way of distinguishing the decision in that case, and at the end of the determination they said this in relation to the Article 3 claim:
"43. We have undertaken a full consideration of this appellant's circumstances. He is a young, fit man whose account of persecution has largely related to Ethiopia. We do not find that the Adjudicator was in error in suggesting that the treatment of the appellant and his family in Ethiopia was irrelevant, as we are satisfied that she was simply indicating that the appellant's treatment in Ethiopia was not necessarily indicative of how he would be treated if returned to Somalia. 44. The background material does not suggest that members of the Eyle clan are specifically targeted in Somalia."
After taking into account certain matters, they said:
"Whilst conditions in Somalia for returnees are doubtless extremely poor, nevertheless, it is clear that former refugees are returning to Somalia, some with the assistance of the UNHCR to southern Somalia. Taking into account the high threshold required in order to breach Article 3, we do not find that the appellant has established that that Article would be infringed in the present instance."
[11]Mr Bedford has also drawn my attention to the earlier passage in the determination in which the Tribunal took a slightly different approach to the adjudicator about the relevance of what happened in the Ethiopian camp. They accepted the fact that this had some link to the vulnerability of the appellant:
"Clearly, the events of 2000/2002 occurred to the appellant and his family in Ethiopia, and not in Somalia, although the appellant's account was that members of his family were kidnapped by militia, who took them back to Somali in slavery, and that such militias also operate within Somalia."
[12]Mr Bedford has sought to challenge the determination of the Tribunal because he appreciates that an appeal to the Tribunal could only succeed on a matter of law, but if there was a decision in his favour on a matter on which the adjudicator had been wrong in law, then he would hope to rely on more up-to-date background evidence about conditions in Somalia and the fact that the earlier material on which the adjudicator relied had slipped out of more recent country information CIPU reports.[13]In my judgment, there is no real prospect of showing the Immigration Appeal Tribunal was wrong on a matter of law. I accept part of Mr Bedford's criticisms, and we have seen this in a number of decisions of the Tribunal when it was getting used to its new limited jurisdiction on matters of law, but I am quite satisfied that this specialist tribunal did review the points of law which had been raised and reached a conclusion which they were entitled to reach which was unfavourable to the appellant.[14]I am also bound to say that, having looked at the more recent material on which Mr Bedford hoped to rely, I am not convinced that that would necessarily have taken him home. Unhappily, according to the UNHCR there are more than 350,000 internally displaced persons in Somalia, and although one commentator emphasised to a recent Scandinavian delegation that there was no control in the camps and militia members could enter the camps whenever they want to and rape or kill with impunity, the issue on Article 3, which the House of Lords has recently re-affirmed in N, is a very high threshold to cross in a foreign state case where what is being complained of is potentially inhuman treatment in the foreign state. I am not persuaded that that would have made all that difference, although that would be of course a matter for the expert tribunal, but on the decision of the Immigration Appeal Tribunal I am satisfied that, for much the same reasons as those given by Keene LJ, who has great experience in these matters, there is no real prospect of success on a further appeal, and I therefore dismiss this application.

Order

Application for permission to appeal dismissed.