FG (Risk, Single Female, Clan Member, Article 3) Somalia [2003] UKIAT 00175 (02 December 2003) [2003] UKIAT 00175

UKIAT
FG (Risk, Single Female, Clan Member, Article 3) Somalia [2003] UKIAT 00175 (02 December 2003)
[2003] UKIAT 00175 · 2003-12-02
[1]FG (Risk – Single Female – Clan Member – Article 3) Somalia [2003] UKIAT 00175 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 19 November 2003 Date Determination notified: 02 December 2003 Before Mr G Warr (Chairman) Mr D R Bremmer, JP Between SECRETARY OF STATE FOR THE HOME DEPARTMENT APPELLANT and FG RESPONDENT DETERMINATION AND REASONS The Secretary of State appeals the determination of an Adjudicator, Miss P Lingam, who allowed the appeal of a citizen of Somalia (hereinafter for convenience referred to as the appellant) from the decision of the Secretary of State to refuse her application for asylum.[2]Miss J Bracken appeared for the Secretary of State. Mr A Bradegan of the Refugee Legal Centre represented the appellant.[3]The appellant was born in 1966. She applied for asylum on arrival in the United Kingdom on 11 August 1999. The Adjudicator accepted that the appellant came from Mogadishu. She was from the sub-clan Waisle which fell within the Abgal that was the main clan of her Hawiye. In 1990 the Darood clan attacked the appellant's home in Mogadishu. Her family fled and her grandmother had been killed. In 1993 she was stopped by members of the Darood clan and they attempted to rape her but she was protected by a neighbour who was assisting her. She went to Kenya and remained there until 1998. Her children had apparently arrived in the United Kingdom prior to her arrival – we are told they both arrived in January 1997 accompanied by her sister.[4]In the letter giving reasons for refusing the application dated 16 September 2002 the Secretary of State took issue with the appellant's credibility. However, the Secretary of State did not field a Presenting Officer before the Adjudicator. The Adjudicator resolved the Secretary of State's concerns in favour of the appellant and accepted that she had given a credible account. He heard from both the appellant and her two sisters who are in this country. The Adjudicator considered that the appellant was at risk as she was a single woman from a small sub clan who would be at risk of persecution by the larger clans because of ethnic grounds. The Adjudicator referred to website information examined by her – and not identified in the determination – that shows that the situation in Somalia had not improved. There was a real risk that she would suffer a breach of her rights under Article 3. She accepted that there would be family life in the United Kingdom and that the appellant as a single female would encounter insurmountable hardship if she were to be returned to Somalia. The children had been in the United Kingdom for 4 years and were settled in their education. Removal of the children would interfere with their private lives in the United Kingdom and their family life with their two aunts. Both the appellant and her children would face insurmountable hardship because they would be returned to Somalia without a male adult in the family to a harsh environment where there was no state protection and they would not be able to seek protection from the large clans. Removal would be a disproportionate interference with their family life.[5]The Secretary of State in the grounds of appeal submitted that the asylum claim had been based on the civil war in Somalia and the appellant had failed to show any differential impact on her – see Adan [1998] Imm AR 338 . The Adjudicator had failed to make any specific reference to supporting objective evidence to indicate that the appellant, as a member of a majority clan (Hawiye from Mogadishu) would be at risk. The appellant had said that Abgal was a large clan in her evidence and there was no material to suggest she would be persecuted on ethnic grounds. The appellant's children and sisters did not have indefinite leave to remain in the United Kingdom and the Adjudicator had not properly applied Mahmood [2001] Imm AR 229 . There was no particular circumstances in the case to suggest that any interference would be disproportionate. There was in any event no obligation to take into account claims about individuals other than the appellant – see Kehinde 01/TH2668.[6]At the hearing Mr Bradegan asked us to adjourn the proceedings to enable the Secretary of State to consider whether the appellant and her children fell within the ambit of any policy or concession. We noted that no application had been made by the RLC in advance of the hearing for the proceedings to be adjourned nor had any application been made to the Secretary of State prior to the hearing for consideration of any applicable policy. It did not appear to us to be proper to adjourn the proceedings. There was nothing to prevent the representatives of the appellant making an application to the Secretary of State at any stage whether or not the proceedings were adjourned. We declined the application to adjourn the matter.[7]Miss Bracken relied on the grounds of appeal and submitted that the Adjudicator had not specified what objective evidence she was relying on. She should not have referred to website information without specifying the source. It was clear from paragraph 6.80 that the appellant came from a majority clan. The Hawiye indeed dominated the militia – see paragraph 6.83. The Hawiye controlled much of the territory in south and central Somalia – see paragraph 6.84 of the country assessment. All references are to the October 2003 assessment. The appellant could seek protection from her own clan.[8]The Adjudicator had not applied the appropriate test of insurmountable obstacles. It was clear from Mahmood that the fact that there was a degree of hardship did not make good an Article 8 claim. It was speculative to say that the appellant would be at risk.[9]Mr Bradegan submitted that the Adjudicator's findings were clear and sustainable. The appellant had been persecuted in the past by reason of her ethnicity. The appellant's evidence had been accepted. Members of a rival clan had attacked the appellant's village. An attempt had been made to rape the appellant. We pointed out to Mr Bradegan that the appellant attributed her problems to in-fighting between the Darood clan and the Hawiye clan. She also referred to her clan as being a large clan – it was not suggested that she suffered because of membership of sub clan.[10]Mr Bradegan submitted that the appellant was a member of sub clan, in minority who could not seek protection. Mr Bradegan referred to written submissions that had been made under cover of a fax dated 11 June 2003. The appellant would face hardship on return as a single woman. There was a risk of rape as appeared from paragraph 6.8 of the country assessment. While the Adjudicator had used the words insurmountable hardship there was no difference between that and insurmountable obstacles. It had been suggested in the grounds of appeal that the appellant could apply from overseas to re-join her family but this was unrealistic as there was no Embassy with the facilities for making an application and it was unclear how she could come within any rule as the children were not settled in the United Kingdom. The son would be unlikely to be removed until he reached 18 and he would then have been in the United Kingdom for 10 years. The family would get the benefit of one policy or another and that should be taken into account.[11]The appellant would be exposed to inhuman or degrading treatment on return and had suffered an attempted rape in the past. There was continuing violence. Reference was made to the appellant's bundle to indicate the problems in Somalia. The infrastructure was extremely poor and the human rights situation was also poor.[12]In reply Miss Bracken submitted that the Abgal (Hawiye) clan dominated the region North of Mogadishu: see paragraph 5.14 of the Home Office Country Information Report. The transitional national government had control over some areas of Mogadishu where its official ministries were located and also had some authority outside the capital and the transitional national government leaders were all highly dependent on a cartel partly comprised of Abgal businessmen: see paragraph 5.10 of the country assessment. There was no reason why the appellant should not be protected by her own clan and she had stated before the Adjudicator that it was common knowledge that the clan of Abgal was a large clan (see paragraph 8 of the determination).[13]It was said that the appellant was at risk of rape. These rapes had largely been committed by militia members: see paragraph 6.8 of the assessment. As the militia were largely Hawiye the appellant would be unlikely to be at risk.[14]The family had been granted exceptional leave to remain in the past because that was the Secretary of State's policy. Now it was not the policy and leave was granted on a case by case basis. There was nothing to prevent the family returning with the appellant if they wished. While the appellant had sisters in the United Kingdom there was nothing to suggest that there was more than the usual bond between siblings between them. The family could apply under the 10 year rule later in so far as that rule might apply to them in the future. There were no insurmountable obstacles preventing the appellant's return. There might be a degree of hardship but that was not sufficient. In any event, the Adjudicator had misdirected herself in relation to the objective material. The appellant was not a member of a minority clan. The Adjudicator's decision should be reversed.[15]At the conclusion of the submissions, we reserved our determination. We have carefully considered all the material before us. It was not in our view the appellant's case that she was a member of a minority clan. Indeed, she refers in paragraph 43 of her statement to the fact that her clan was big. At paragraph 20 of her statement she refers to problems in the early 1990s because there was a lot of fighting between the Darood clan and the Hawiye clan. The evidence does not tend to suggest that someone from a sub clan of the Hawiye/Abgal clan would be at risk in Mogadishu. The Hawiye are one of the four major clan families – see paragraph 6.80 of the country assessment. In paragraph 6.83 reference is made to the Hawiye-dominated USC militia. It is said in paragrpah 6.8 of the assessment that during 2002 there were 32 rape cases in Mogadishu largely committed by militia members and it is suggested in some reports that the incidents of rape had increased during the first half of 2003. In one report Amnesty International referred to women and girls who were internally displaced persons as well as under privileged minorities including Bantu, Bravanese, Midgan, Tumal, Yabir and the wealthier Benadiri community as being particularly at risk of rape by militia and other gun men.[16]It is apparent that the Hawiye clan is dominant in part of the region north of Mogadishu – see paragraph 5.14 - and that there is a strong local Abgal based administration in the northern districts of middle Shabelle. We are also conscious of the fact that there are other interests in southern Mogadishu – see the references to the USC on pages 83 and 84 of the country assessment. Nevertheless it does appear to us apparent that even on the appellant's account she comes from a big clan and she also comes from Mogadishu in parts of which her clan hold sway. In paragraph 43 of the appellant's statement she says as follows:
"There are still problems in Somalia. Even though my clan is big, these clans fight amongst each other. I could be killed."
[17]We do not underestimate the difficulties for the appellant in Somalia. There is a report, for instance, from Medecins Sans Frontieres dated 9 December 2002 which refers to the risk of rape and the inadequate health cover and other problems. The mortality rate is extremely high among babies and for women during pregnancy or delivery. There are food shortages and other serious problems.[18]Against this, the appellant would be returned to Mogadishu where she comes from and where she would be under the umbrella of a large and we find dominant clan. We remind ourselves of the third of the considerations set out in paragraph 55 of Mahmood [2001] Imm AR 229 at 250:
"Removal or exclusion of one family member from the state where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family."
[19]We do not feel on the evidence that the return of the appellant would expose her to a real risk of inhuman or degrading treatment. While there are cases of rape in Mogadishu, it is not established that the appellant, admittedly as a single woman, would herself be at risk given that she is a member of a sub clan of a majority clan.[20]As we understand the position, the appellant's children and her sisters no longer have exceptional leave to remain in the United Kingdom. If the appellant is returned to Somalia there is no obstacle to the appellant's sisters and children being returned with her.[21]We appreciate that the situation in Mogadishu is far from ideal and that there is some violence and lawlessness and difficulties with the infrastructure. We also understand that there are in fact no returns to Somalia at the present time. We apprehend that the Refugee Legal Centre will be making an application to the Secretary of State for the appellant's position and the position of the other members of her family in the United Kingdom to be considered by the Secretary of State under various policies or concessions. We have no doubt that any such application will be given careful consideration by the Secretary of State.[22]We are not satisfied that any interference with the appellant's family or private life in the United Kingdom would be disproportionate in all the circumstances of the case. Such difficulties as the appellant may encounter on return to Somalia are not in our view sufficient to engage Article 3 although we recognise there may be cases which justify the grant of exceptional leave to remain on humanitarian grounds as was said in paragraph 64 of Ullah [2003] Imm AR 304 at 324.[23]In conclusion, the Adjudicator appears to have decided this appeal on the mistaken basis that the appellant was a member of a minority clan. She did not make it clear to what objective material she was referring and she also referred to web based material which was not made available to the parties. This should never be done.[24]We accept the submissions made by the Secretary of State. The Adjudicator's decision is unsustainable. We reverse it on both the human rights and asylum aspects.[25]Appeal allowed. G Warr Vice President

Cited in 1 later judgment