SH (Rahanweyn not a minority clan) Somalia CG [2004] UKIAT 00272 (28 September 2004) [2004] UKIAT 00272

UKIAT
SH (Rahanweyn not a minority clan) Somalia CG [2004] UKIAT 00272 (28 September 2004)
[2004] UKIAT 00272 · 2004-09-28
[1]SH (Rahanweyn not a minority clan) Somalia CG [2004] UKIAT 00272 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 23 August 2004 Date Determination notified: 28 September 2004 Before Mr H J E Latter (Vice President) Dr H H Storey (Vice President) Mr A G Jeevanjee Between SH APPELLANT and Secretary of State for the Home Department RESPONDENT Miss J. Bracken, Home Office Presenting Officer for the appellant Mr I. Edwards of Counsel, instructed by Punator & Co. Solicitors for the respondent. DETERMINATION AND REASONS The appellant is the Secretary of State. He appeals against a determination of Adjudicator, D.N. Bone, allowing the appeal of the respondent (hereafter the claimant) against a decision giving directions for removal following refusal to grant asylum.[2]The Adjudicator accepted that the claimant is a member of the Rahanweyn clan whose family lived in Baidoa (otherwise spelt Baydhaba) which is in the Bay and Bakool area of south-west Somalia. He described this as a minority clan whose members "have been persecuted in the past by majority clans and this situation is still prevalent in Somalia". He also accepted the account she gave of her past experiences. She had lived with her parents in Baidoa until July 1999 when her family was attacked by a group of men from the Hawiye clan. They shot her father in the leg and her in the stomach. She woke up in hospital; she assumes she got there with the help of neighbours. When she got out of hospital in September 1999 she and her family went to Kenya.[3]Turning the background evidence the Adjudicator noted that in early April 2002 Colonel Shaatigudund, leader of the RRA, was inaugurated as President of the new regional administration called the south-west state of Somalia. However, in July 2002 fighting broke out between forces loyal to the President and those loyal to two RRA vice-chairmen. Fighting between the two factions continued into 2003 resulting in deteriorating security conditions in Baidoa and its environs.[4]The Adjudicator concluded:
'60. It would appear from the objective evidence that the situation in the Bay and Bakool regions of Somalia is far from satisfactory. Not only is there history of conflict with the Hawiye clan but there is infighting between senior factions of the Rahanweyn clan. Given the account this appellant has given of herself and the fact that her family were targeted at the hands of militants of the Hawiye clan in July 1999, even accepting that there has been some means of improvement in the situation in the appellant's home area since that time, I do consider that this appellant would be at risk if she were to be returned there. I am satisfied that the appellant has discharged the burden of proof upon her of establishing that as at the date of the hearing she had a well-founded fear of persecution for a Refugee Convention reason if returned to Somalia. Members of the Rahanweyn clan have been persecuted in the past by majority clans and this situation is still prevalent in Somalia. I accept that the appellant's claim shows a fear of persecution for one of the reasons of the Convention. 61. There is no central government in Somalia. I cannot see in such a situation that if the appellant were to be returned to Somalia there is in force in that country a sufficiency of protection because there is no reasonable willingness by any law enforcement agencies to detect, prosecute and punish any offenders.'
[5]In the grounds of appeal the Secretary of State disputed that the Rahanweyn were a minority clan and submitted that members of this clan did not face persecution in the Bay and Bakool area. At the present time. He further submitted that in assessing the claimant to be at real risk of persecution by virtue of in-fighting between factions of the Rahanweyn clan, the Adjudicator offended the criteria adumbrated in Adan HL [1998] ImmAR 338 that there must be a differential impact over and above sufferings caused by civil war to establish a risk of persecution.[6]At the hearing Mr Edwards pointed out that the claimant's sub-clan was Elai (which was not to be confused with Eyle). He accepted that he had no evidence about the situation of this subclan. He sought an adjournment so an expert report could be obtained. We refused this request. The appellant's representatives had had all the time since the appeal was lodged to obtain an expert report. They had adduced a (generic) report from Mr C. Barnes dealing with the Rahanweyn; the opportunity could have been taken to ask Mr Barnes to comment on the Elai sub-clan.[7]Miss Bracken highlighted references in the background evidence identifying the Rahanweyn's close connections with the Digil, who were a majority clan. Within the Bay and Bakool area the Rahanweyn had established themselves as the dominant clan. Their inter-clan fighting would not expose the claimant to any risk over and above those faced by other civilian Rahanweyn. Even if risk in the home area were accepted, she would have a viable internal relocation alternative.[8]Mr Edwards argued that the Adjudicator had reached sustainable conclusions. He had not identified the Rahanweyn as a minority tribe and had correctly identified that within the Bay and Bakool area they had power. He did not accept that Adan principles would apply to the situation of the claimant because, as a woman with a young child from a subclan she described as very small and vulnerable, she would found herself in an area of interclan armed conflict in which rape had been used as a weapon of war and human rights abuses were committed with impunity. Not only would the claimant be at risk in her home area, it would be unduly harsh for her to relocate, since she would be an internally displaced person (IDP) without the protection of any majority clan. Our assessment[9]We do not consider that the Rahanweyn constitutes a minority clan. We would accept that there has been some division of opinion about the minority clan status of the Rahanweyn in the past: the Adjudicator correctly noted this at paragraphs 43 and 56. However, it is clearly affiliated with the majority Digil clan. Paragraph 1.1 of the Report on Minority Groups in Somalia indicates this, albeit observing that the clan is considered to be less noble than the major Somali clans. That affiliation may mean, as the Adjudicator describes things at paragraph 3.2 of his determination, that it occupies in effect an intermediate position between the main Somali, clans and minority clans proper. Furthermore, 2002 has seen its main political embodiment, the RRA, consolidate its control of the Bay and Bakool regions. Even though since 2002 there has been fighting between two RRA factions, there is no evidence to suggest that major clans from outside the area, the Hawiye in particular, any longer have a significant power base there.[10]We agree with Mr Edwards that for the most part the Adjudicator was quite careful not to describe the Rahanweyn as a minority clan. But, in explaining at paragraph 60 why he was allowing the appeal he did state: 'Members of the Rahanweyn clan have been persecuted in the past by majority clans and the situation is still prevalent in Somalia".[11]This was an error of law on the part of the Adjudicator since the objective evidence before him simply did not demonstrate that "this situation is still prevalent in Somalia". On the contrary it demonstrated that the Rahanweyn had established themselves through the RRA as the dominant clan in that area and it did not disclose any continuing power base held by the Hawiye in that area.[12]Mr Edwards contended that even if we found the Adjudicator had erred in his assessment of the position of the Rahanweyn currently, his decision to allow the appeal was still justified in light of the fact that the sub-clan to which the claimant belonged – the Elai - were a small and vulnerable sub-clan. The difficulty with this contention is that apart from the claimant's own evidence, there is no evidence that the Elai are a vulnerable subclan. Given that the background materials go to considerable lengths to identify minority clans and vulnerable subclans, we consider this lack of mention significant, particularly since the Elai is listed as one of the Rahanweyn subclans. It would be absurd to classify a sub-clan as vulnerable simply because it is smaller than the parent clan: most clans, major, intermediate or minority, divide into subclans.[13]Mr Edwards urged us to find that even if Elai in general were not at risk of persecution, this claimant would be in view of her past persecution at the hands of the Hawiye: there was no good reason to think that this could not re-occur. However, this suggestion was not supported by the background evidence, which did not indicate that the Rahanweyn were at real risk of further persecution at the hands of the Hawiye.[14]Turning to Mr Edward's submission that the interclan fighting in the Bay and Bakool region would have a differential impact on the claimant, we again find no support for it in the background evidence. It may be that the armed conflict there has been marked by international humanitarian law violations, but these are not stated to have been wide-scale, nor are they stated to include a significant incidence of targeting of civilians. The January 2004 Joint Danish, Finnish, Norwegian and British Fact-Finding mission on southern Somalia noted that throughout the period since summer 2000 when clashes began:
'The majority of the civilians in a number of districts throughout Bay and Bakool never experienced armed clashes and these areas have remained relatively stable'
. It was added that as long as clan members stay within their own sub-clan's traditional area, they are considered safe.' Furthermore, the background materials specifically describes the armed conflict concerned as fighting in the context of a leadership dispute between different factions of the RRA. Neither the claimant nor any member of her family has been involved with any faction of the RRA. Whilst there is reference in CIPU April 2004 Report at paragraphs 6.167-8 to a deterioration in the security situation in the Bay and Bakool region particularly in Baidoa as a result of the continued fighting between different RRA factions, it is also stated that, since reconciliation efforts started, clashes have diminished in intensity.[15]We agree with Miss Bracken that when assessing risk within the Bay and Bakool area the Adjudicator should have applied the principles set out by the House of Lords in Adan and the Tribunal in such cases as J (Somalia) [2003] UKIAT 00147 . A risk of being exposed to lawlessness or the normal incidents of civil war or armed conflict does not amount to persecution under the Refugee Convention. Nor does it amount to treatment contrary to Article 3 of the Human Rights Convention, since a person affected by civil war or armed conflict can only succeed in showing a real risk of such treatment if he can show a risk personal to him: Vilvirajah v UK [1991] 14 EHRR 248 .[16]Our conclusion is that the Adjudicator's finding that the claimant would be at risk of persecution/treatment contrary to Article 3 in her home region was contrary to the objective evidence. The misapprehension of fact involved constituted an error of law.[17]For the above reasons the appeal of the Secretary of State is allowed. H.H. STOREY VICE PRESIDENT

Cited in 2 later judgments