AM v The Secretary of State for the Home Department [2002] UKIAT 08403 (29 November 2002) [2002] UKIAT 08403

UKIAT
AM v The Secretary of State for the Home Department [2002] UKIAT 08403 (29 November 2002)
[2002] UKIAT 08403 · 2002-11-29
[1]APPEAL No. [2002] UKIAT 08403 HX-18874-2002 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 18/10/2002 Date Determination notified: 29 November 2002 Before MR N H GOLDSTEIN (CHAIRMAN) MRS R FAUX MR A A LLOYD JP Between Abdulkadir MOHAMMED APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant: Mr R Toal of Counsel For the Respondent: Mr D Ekagha, Home Office Presenting Officer DETERMINATION AND REASONS The Appellant, a citizen of Somalia, has been granted leave to appeal to the Tribunal against the determination of an Adjudicator (Mr P J M Hamilton) dismissing his appeal against the refusal of the Respondent to grant to him asylum.[2]The learned Vice President Mr M W Rapinet considered that the grounds of appeal merited further consideration.[3]Ground 1 of the Application for leave to appeal summarises the nature of the Appellant's challenge as follows:
"This is essentially a 'reasons' challenge made on three grounds. First, the reasoning disclosed by the adjudicator for dismissing this appeal is wholly inadequate (falling far below the standard the law requires); second, the adjudicator's reasoning is internally inconsistent and contradictory; third the adjudicator has failed to engage with the principle submissions made (whilst rejecting a submission that was not made at all). See generally paragraphs 15 et seq."
[4]It is the Appellant's case that he is a Somalia national member of the Sheikhal Gandarshe clan (the "SG") and that furthermore his clan is a Benadiri sub-clan. It is Home Office policy to recognise members of (inter alia) the minority Benadiri clans as refugees since the UNHCR has assessed them to be a "persecuted minority".[5]The Grounds of Appeal point out that there was no dispute between the parties about the Appellant being a Somali national. The Secretary of State's concerns arose because of an early statement made by the Appellant that he was Sheikhal Jastra ("SJ") and not as later said by him SG.[6]Ground 7 continues: "But both are Sheikhal sub clans. The explanation given by the appellant is corroborated by his expert, Dr Virginia Luling, who explains that Jastra and Gandershe are neighbouring small towns on the coast between Mogadishu and Merca. Significantly she also explains how both Jasira and Gandarshe are 'ethnically distinct from other [Sheikhal] groups such as Laboge'. The significance of this lies in the Home Office's assertion that, according to Professor Lewis, Sheikhal are a sub clan of the Hawiye (and therefore are not a minority clan at risk since they are protected). As Dr Luling goes on to make clear (quoting from her former teacher, Professor Lewis' book) 'the group to which Lewis is specifically referring is the Sheikhal Loboge [which we shall now call 'SL'] who do indeed form part of the Hawiye, being adopted in the Herab section".[7]The Appellant's case that he was SG was supported by his own evidence together with the statements of four others and the Somali Relief Society and one witness who gave evidence before the Adjudicator.[8]It was explained to the Adjudicator as to how the Home Office plainly misunderstood the distinctions between the various Sheikhal sub-clans.[9]Submissions were put before the Adjudicator (which were not referred to in his determination) as to why the British Danish and Dutch report on minorities in Somalia was unreliable. The joint report appeared to find the members of the Sheikhal sub-clan had links with the major Hawiye clan and were protected by them. The Adjudicator found based on the objective evidence and particularly that joint report that this was indeed the case. He also referred to a United Nations report quoted in the refusal letter which also referred to members of the Sheikhal sub-clan "receiving some degree of protection from the major clan". The Adjudicator at paragraph 23 of his determination appeared to find that there was "some conflict" between the reports of Dr Luling and Professor Lewis.[10]At paragraph 20 of his determination the Adjudicator stated: "The issues for me are the identity of (the appellant's) clan and the safety issue for the appellant were he to be returned home".[11]The Adjudicator continued at paragraph 21 that he found the Appellant was "not a Benadiri".[12]Significantly at paragraph 24 of his determination the Adjudicator stated as follows:
"Although it was argued by the Secretary of State that, despite its volatility, minorities groups are no longer at risk in Mogadishu, Dr Luling's arguments weigh heavily with me and I would have concerns for members of the minority clan of the appellant returning to that area at the current time"
[13]The Adjudicator's findings and observations in this regard are not entirely clear to us given that he had earlier found that the Appellant was not a Benadiri. It is however apparent that the Adjudicator, having noted the Secretary of State's submissions that minority groups were no longer a particular risk in Mogadishu appeared to prefer Dr Luling's argument that members of minority clans would still be at risk if returned to Mogadishu at the present time.[14]Mr Toal submitted to us that the Secretary of State had misunderstood the nature of Professor Lewis's findings in relation to the Sheikhal clans. He submitted that Dr Luling's and Professor Lewis's evidence was not inconsistent and supported each other.[15]It was noteworthy that at this stage of the hearing, Mr Ekagha for the Respondent informed us that as he saw it, the issue was whether the Appellant was Benadiri or not. The Adjudicator had found the Appellant was not Benadiri and had relied "heavily" on the British, Danish and Dutch joint Report. He informed us that he would not object to a remittal of these issues to be heard afresh by another Adjudicator. Mr Toal strongly argued that the Adjudicator had made sufficient factual findings to enable the Tribunal to determine the matter. We agreed.[16]Mr Toal continued that the Appellant was indeed a Benadiri but pointed out that the real issue was whether or not the Appellant engaged the Refugee Convention, in relation to which it was important for us to determine the nature and characteristics of the Appellant's clan, and find that as a member of a minority group whether Benadiri or otherwise, the appelant would have a well-founded fear of persecution.[17]It was Mr Ekagha's subsequent submission was that not all minority groups were at risk. That submission does not accord with the Adjudicator's conclusions at paragraph 24 of his determination with regard to the risk to minority groups returning to Somalia at the present time.[18]Upon our consideration of the documentary evidence we are satisfied that both SG and SJ are Sheikhal sub-clans. This is confirmed by Dr Virginia Luling that Jasira and Gandarshe are neighbouring small towns and are ethnically different from other Sheikhal groups such as the Loboge. Dr Luling makes clear, quoting from her teacher Professor Lewis's book, that Professor Lewis was referring to the group SL who are a part of the Hawiye.[19]Dr Luling's expertise is impressive as indeed was recognised by the Adjudicator. She makes clear in her report of 11 November 2001 that:[20]We have noted Dr Luling's letter of 28 April 2002 which in effect marries her conclusions to that of Professor Lewis. She states:[21]Dr Luling's letter makes clear that she is also taking into account Professor Lewis's book entitled "Peoples of the Horn of Africa" of which a new edition was published in 1994. At page 149 of the book under the chapter "The Somali" Professor Lewis states inter alia: "As an example of a priestly group which occurs as an autonomous tribal section, we may take the Sheikal Lobogi, a section of the Herab tribe. Although they are found here as a corporate group, they are apparently also scattered among the Hawiya generally. The tomb of the founder of this group, Sheik Said, is at Geledi".[22]It is clear from this section that Professor Lewis is only talking about the SL.[23]Our attention has been drawn to a further publication of Professor Lewis entitled "Saints and Somalis - Popular Islam in a Clan-based Society". A page 17 he states inter alia as follows: "The Sheikhaal Lobogge section of the Herab clan of Somalia are, on the other hand, a good example of a religious group or community firmly assimilated to the clan of adoption. Sheikh Lobogge, the eponymous ancestor of the group, is a descendant of Sheikh Sa'ad whose tomb is at Geledi in Somalia".[24]This passage clearly relates to Professor Lewis's view that the majority clans in Somalia have adopted small groups into them as stated in his earlier book.[25]We find that Professor Lewis's views and that of Dr Luling are clearly consistent with each other and indeed are consistent with the Minority Group Report. Indeed at paragraph 10 of the report sub-headed "Shekhal" the following inter alia is stated:
"The Shekhal clan has been described in various terms such as Sheikhal, Sheikal, Shekhal Lobogi, Shekhal Gendershe or Shekhash"
[26]Mr Toal pointed out that this observation was slightly misleading as they were not all terms for the same clan. Relying on the views of both Professor Lewis and Dr Luling, he submitted that this demonstrated that the SL and SG were different. They were "not synonyms".[27]The Minority Group Report continues: "One source considers them as a minority group, though other sources consider them as associated to the Hawiye, as a sub-clan of the Hawiye or even as a separate clan-family".[28]We find that such a view is not inconsistent with the views expressed by Professor Lewis and Dr Luling. More to the point it shows that the views of Lewis and Luling are consistent with each other and not contradictory.[29]The SL are a sub-clan of the Hawiye whereas the SG and SJ are separate groups ethnically distinct from the majority of the Somalis. With that distinction kept in mind we find that the Minority Group's findings (above) are consistent with that view.[30]The Minority Group Report continues:
"Guido Ambroso writes that the Shekhal is a priestly lineage with segments present both in central and southern Somalia as well as eastern Ethiopia. In Somalia they are known as Shekhal and in Ethiopia as Shekhash. The Shekhal claim direct descent from a religious Arab lineage even if some genealogists consider them as part of the Hawiye"
[31]The report continues:
"Information gathered by the Netherlands Embassy in June 1999 from UNPOS Nairobi, show that the Shekhal are associated with the Hawiye. In general, Shekhal clan members have no specific area or zone of residency in the country. They are scattered in different districts and regions of the county. One can find Shekhal (as a family) in Mogadishu ? . The Shekhal Loboge is a sub-clan of the Shekhal, who have their traditional homeland in Ethiopia"
[32]Looking at the sub-section under paragraph 10 as a whole we find ourselves in agreement with Mr Toal that the Netherlands Embassy's findings were essentially about the SL.[33]The report continues that according to a UN source in Nairobi, the members of the Shekhal clan comprises two sub-clans one of which is a member of the Herab alliance. The report continues: "The source said that the Sheikhal should not be considered as a Benadiri clan".[34]As Mr Toal rightly observed it is that source which states that the Sheikhal should not be considered as Benadiri. We agree with Mr Toal who observed that the report did not disclose the identity of the source, his/her credentials, nor why that source should therefore be relied upon. Mr Toal accepted, and indeed we find, that the SL are not a Benadiri clan and are part of the Hawiye.[35]It is noteworthy that the report's authors make reference to the views of Wayne Long who is described as a (UNDP) in Somalia a member of the United Nations Co-Ordination Unit for Somalia. It was Mr Long's understanding that the Sheikhal should not be considered as a minority group but: " as a Hawiye clan that seceded from the Hawiye five to ten years ago and no longer considers itself as Hawiye".[36]As Mr Toal submitted that if Mr Long's understanding applied to the SL then it was consistent with the views of both Professor Lewis and Dr Luling.[37]The report makes reference to the views of Professor Lewis and acknowledges that he considered the SL as a sub-clan of the Hawiye.[38]It is noteworthy that the report refers to a UN source in Nairobi that:[39]Apart from that acknowledgement of the SG being a minority clan, at paragraph 10.3 of the report this view is re-affirmed and the SG are described as: " an unarmed community, which has been receiving threats in their traditional areas since 1990. They cannot defend themselves against the armed militiamen and therefore seek protection from Hawiye sub-clan members, who have been occupying their traditional home areas since 1990. Another UN source also considered the Shekhal clan enjoys some degree of protection from the Hawiye clans".[40]It is noteworthy that Mr Toal submitted that if he had to choose "one single paragraph" upon which to rely in support of the appeal then it would be paragraph 10.3 above apart from the last sentence.[41]It is however of interest, that the last sentence appears to refer to the Shekhal as a single clan whilst referring to the Hawiye as "clans". We are able to find that the Shekhal is not one Homogenous group but a distinct group. In that regard the views expressed by the Minority Group and those of Dr Luling and Professor Lewis are entirely consistent with each other.[42]As Mr Toal clarified the issue before us was not whether the SG or SJ were Benadiri but whether they were at risk as a minority group because of the various qualities they possessed in common with the Benadiri. Whether or not they were in fact Benadiri was a distraction.[43]Indeed we find that the Minority Group Report supports that view. We have noted sub-section 7 "Benadir" which explains that the name "Benadiri" does not correspond to any well defined sociological reality. The report continues: "In the context of resettlement programmes for Somali refugees in Kenya, the Somali refugee traders of the coastal ports decided to regroup under the generic term 'Benadir', which designates greater Mogadishu. Those indigenous to this areas succeeded in calling themselves 'Benadiri'. the term Benadiri, as a community, did not fully appear before the 1990 civil war (NB This is also in accordance with other, UN, sources). In the spoken language, 'Benadiri' implies a cloth, 'alindi, hand woven by artisans in the city and distinguished by variously coloured stripes".[44]Significantly, the report continues: " not all Benadiri would know all the sub-groups, and that there exist many more sub-groups than the ones mentioned by the elders in Nairobi. It also appears that sub-groups mentioned as living in one town or city quarter may have spread to other coastal towns ? The Benadiri elders stressed that Benadiri do not put as much weight on genealogical descent as do the Somali clans. They do not count back many generations although Benadiri life is nonetheless clan-based. Each group or clan, in theory at least, traces its origins to a single male ancestor".[45]It is therefore clear that even among the Benadiri elders they have to discuss amongst themselves the people who make up the Benadiri group.[46]The major Somali clans do constitute some sort of sociological reality for example the Hawiye clan represent all people who descend from a common ancestor through patralineal descent. Their roots are clear as are the Dawod and Isaaq. However that not all the individual groups that form the Benadiri can trace their routes to a common ancestor be they SG or SJ or the Ashraf or Bravanese people. As Mr Toal rightly put it, "they do not have in common, a common ancestor and the reason they are all called Benadiri is to do with the more recent formation of collective identity".[47]In Dr Luling's report of 11 November 2001 she made clear that as a minority group the SG were at risk. She was of the opinion that the SG were of the Benadiri clan and as such had been "especially victimised during the civil war" most of them had fled the country to Kenya and elsewhere. Dr Luling describes those who still remained in Somalia as "living a semi clandestine existence".[48]Such a view is not inconsistent with the Minority Report at paragraph 10.3 which acknowledges that the SG as a minority clan in Somalia have been receiving threats in their traditional areas since 1990. Indeed the report at paragraph 4.2 points out that during the civil war the minority groups of Somalia were among the most vulnerable and victimised populations in the country. These groups did not have any militia as most major Somali clans did and that generally members of the various minority groups were "and still are unarmed" and were very often victims of the killings, lootings, rapes, abductions, exclusions displacements and other forms of aggression committed by members of the major Somali clan based militias. The report continues "this was and still is the case in parts of central and southern Somalia".[49]It is apparent upon reading paragraph 4.2 the Report, that its authors in considering the present situation of minority groups in Somalia, have not confined themselves to simply those who are of the Benadiri but have considered the position of all minority groups in Somalia.[50]The grounds of appeal have sought to highlight those aspects of the British, Danish and Dutch report which are unreliable and/or do not support the Respondent's case. The Appellant's representatives refer to the following:[51]We have however pointed to those aspects of the Minority Group Report which are consistent with the Appellant's case, not least as to how the generic term "Benadir" refers to mixed race coastal traders from around Mogadishu. This finding is consistent with Dr Luling's explanation that Jisira and Gandershe are coastal towns between Mogadishu and Merca.[52]It is particularly noteworthy that annexed to the appellant's grounds of appeal is a document sub-headed "Benadiri Sub-Clans" apparently a list of clans or sub-clans that the Home Office have agreed are "minorities" who may get refugee status. The list under the column headed "Mogadishu" includes "Shekhaal Jisira" (sic) as one such Benadiri sub-clan. This would be consistent with Dr Luling's findings that: "The Sheikhal Jasira are among the 'Benadiri' groups recognised by the British Home Office as qualifying for refugee status (therefore) the Sheikhal Gandershe ought logically to be included also".[53]We are told by Mr Toal (and it is further stated by the author of the grounds of appeal Rick Scannell) that it was submitted to the Adjudicator that in the light of the unreliability of the Minority Group report and in the light of the analysis of Dr Luling, the report's section on "Shekhal" was unreliable and that the SG and SJ were indeed Benadiri sub-clans ? not least bearing in mind the geographical description of the Benadiri. It had also been pointed out to the Adjudicator that Dr Luling was herself amongst the bibliographical sources of that report.[54]In the light of our findings we conclude that the Sheikhal Gundarshe and the Sheikhal Jasira are minority groups who are not protected by the Hawiye. There has been a failure on the Respondent's part and indeed that of the Adjudicator to make an important distinction between the SG and SJ on the one hand and the Sheikhal Loboge on the other. The latter, as indeed Mr Toal conceded, are protected by the Hawiye. We find that the Sheikhal are not one discrete sub-clan. The SG, SJ and SL are their own distinct and separate groups and as such ethnically distinct from the majority of the Somalis. We find that the views of Professor Lewis and Dr Luling are clearly consistent with each other and for the purposes of this appeal consistent with the Minority Group Report.[55]For the reasons we have above canvassed we find that members of the SG and SJ clans are as minority groups currently at risk if returned to Somalia.[56]We find that the Appellant whether as a member of the SG or SJ clan is of the Benadiri and as such among the groups recognised by the Home Office as qualifying for refugee status.[57]We conclude that the Adjudicator was incorrect in finding that the Appellant was not a Benadiri and therefore not at risk if now returned to Somalia.[58]We are satisfied that this Appellant has demonstrated that he is at risk of persecutory harm if returned to Somalia.[59]We see no reason why there should be any different conclusion in particular under the provisions of Article 3 of the ECHR.[60]The appeal is therefore allowed.

Cited in 2 later judgments