Issue 47 December 2009 - Current Awareness: Asylum, Somalia

AA v Secretary of State for the Home Depart­ment [2009] CSIH 78

In this application for leave to appeal the applicant claims to be a national of Somalia. She maintains that she was born and brought up on Koyama Island, south of the port of Kismayo on the east coast She says that she is of Bajuni ethnicity and, as such, is persecuted by the major­ity clans in Somalia, notably the Darood and Hawiye. She says that she lived all her life on Koyama other than from 1991 to 1997, when she was in a refugee camp near Mombassa, Kenya. When she claimed asylum on April 1,2007, she gave an account of police attacking her family home on October 20, 2006, raping her and killing her mother and sister. She was left pregnant by the rape and now has an infant, born in the United Kingdom. She managed to reach the United Kingdom by sailing to Kismayo on March 30, 2007, flying to Mogadishu and, from there, travelling via an unknown country. Given the lawless state of South Central Somalia, a Somalian Bajuni will normally qualify7 for protective status under the Refugee Convention and protection under art.3 ECHR.

The applicant's claim for asylum was refused by the re­spondent by letter dated April 24, 2007. When her appeal came before an Immigration Judge ("IJ") on July 6, 2007, the respondent submitted that the crux of the claim was whether the applicant was of Bajuni ethnicity. That sub­mission is well founded if an assumption is made that the applicant is from Somalia. It is an important element in this appeal that the IJ was "prepared to accept" that the ap­plicant was "from Somalia". However, he rejected her contention that she was from Koyama or of Bajuni eth­nicity*. On that basis, he dismissed her appeal. In reaching his conclusions, the IJ specifically stated that he was at­tempting to follow the Country Guidance case of AJH (Minority Group-Swahili Speakers) Somalia CG [2003] UKIAT 00094 which reiterated (see para.33, below):

"57.... What is needed... in cases in which claims to be Somali nationals of Bajuni clan identity an made is first of all: (1) an assessment which examines at least three different factors:

a) knowledge of Kibajuni;

b) knowledge of Somali varying depending on the person's personal his­tory; and

c) knowledge of matters to do with life in Somalia for Bajuin (geog­raphy, customs, occupations etc.).

But what is also needed is (2) an assessment which does not treat any one of these three factors as decisive:…it is even possible albeit unusual that a person who does not speak Kibajuni or Somali could still be a Bajum”.

There was ample material before the IJ to justify his con­clusion that the applicant was not from Koyama; i.e. that her case under heading "c)" (above) was a weak one. This material included an answer, which she gave at interview, as to which was the largest island of the group that she came from. She answered "Kismayo", and also referred to it as an island on another occasion. Kismayo is neither an island nor on an island, being a port on the mainland Somalia coast. There were other matters which suggested that the applicant was not from Koyama including a lack of knowledge of the basic geography of Koyama island itself, notably its general shape and dimensions. Finally she appeared unaware of the problem of forced labour, which is a major problem for Bajuni on Koyama and other islands. Thus, it is not at all surprising that the IJ reached the conclusion he did on this aspect of the claim. The language issue posed different problems. In re­lation to aspect "a)" in AJH etc (above), the If made cer­tain general findings:

"33.... The principal language [of the Bajum] is Kibajuni, a dialect of Swahili. ...most Kibajuni (sic) also speak Somali...

 35. ...the Bajuni in Kismayo and outlying islands speak their own di­aled. It was estimate 'that 50% of those are able to speak Somali but…the vast majority of those that can understand Somali are from the mainland".  It was highlighted that the island based population has tended not to be able to speak Somali because of their social isolation from the mainland”.

However the AIT in AJH etc. also found that most, but not all, Bajuni speak Somali. But they went on to make a particular note of the evidence of a Professor Lewis that "Most Bajuni do not speak Somali... The kind of Bajuni who would [speak Kibajuni] (sic [speak Somali]?) are those who have most interaction with Somalis, minor local political or business role or elders, leaders of local communities."

When the case came before two other IJs for reconsider­ation of the decision of the If they held that the IJ had not made any material error of law. The applicant sought leave to appeal from the Inner House.

Held: (1) The question of whether a material error of law has occurred falls to be answered according to the well-known tests which identify what such an error con­sists of in the context of an appellate jurisdiction. The Court was not satisfied that the AIT misdirected itself in law, given the correct focus on the Country Guidance case of AJH. But an error of law occurs also if an ATT proceeds upon a misapprehension or misconstruction of the evidence before it. The error must go to the root of the decision for it to be regarded as material. But the Tribu­nal must provide reasons which are sufficient to enable the Court to carry out its appellate function of examining whether such an error has occurred.

(2) The IJs carrying out the first stage reconsideration proceeded upon a mis­apprehension of the evidence accepted by the IJ. The-IJs stated specifically that "in fact" the IJ had not found that the applicant spoke no Somali. This was incorrect as the IJ referred quite dearly to what he described as, "the fact that the Appellant did not know any Somali". He was not just describing evidence given by the appellant. Further­more, the finding went beyond holding that the applicant did not speak any Somali; it was that she did not know any Somali at all. Given that the issue of a person's knowl­edge of Somali is one of the three factors specifically re­ferred to in AJH, it was impossible to assert that this fact was anything other than a material one. The IJ's decision that the original appeal decision be upheld must be re­garded as proceeding upon an error of law accordingly.

(3) Although the IJs proceeded to cast doubt upon the IJ's finding that the applicant was from Somali this only served to demonstrate a possible error on the part of the IJ in making this finding. The IJs might have been correct to state that the IJ did not have to conclude that the appel­lant was from Somalia or anywhere else. But he did find in fact that she was "from Somalia". The finding cannot be ignored and it is an important one.

(4) The appeal to the IJ could not be resolved, as the IJs suggest by rejecting the applicant's account of coming from Koyama, having been persecuted as a Bajuni there Although it was decided, for sound reasons, that the applicant was not credible about her residence in Koyama, and hence about the persecu­tion she described there, it remained sufficient for the ap­plicant's claim to succeed that she demonstrate only that she was a Bajuni who had come from Somalia. If that were shown to be a real possibility, it is not disputed that she would have a well founded fear of persecution upon a return there.

(5) The IJ determined that she was "from Somalia". This presumably meant that he accepted that that is where she had come from at the material time, rather than, e.g. that she might be a Somali Bajuni who had been living in, and come from, Kenya. He neverthe­less dismissed the applicant's claim because he did not ac­cept that she was a member of a minority clan. It follows, from the IJ's rejection of the applicant's claim to be a member of a minority clan, that she must be a member of a majority clan. But that then presents a further diffi­culty in terms of the background material. If she is a member of such a clan, why does she not only know nothing of the Somali language but is also a reasonably fluent Kibajuni speaker? There is no explanation for this apparent inconsistency given in the IJ's determination and reasons.

(6) One conclusion might have been that the applicant is of Kenyan Bajuni ethnicity or of Somali Bajuni ethnicity who was living in Kenya. But the IJ did not hold any of these possibilities demonstrated.

(7) For these reasons, the Court considered that the application for leave to appeal should be granted and the appeal to the AIT from the respondent be the subject of a second stage reconsideration. At such a re-hearing no doubt the matters explored before the Court, including whether the applicant is from Somalia and a member of a minority clan, can be revisited.