Tribunal decisions

The decision

AN (Tunni Torre) Somalia [2004] UKIAT 00270

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 15 September 2004
Date Signed: 15 September 2004
Date Determination Notified: 24 September 2004

Before:

Mr S L Batiste (Vice-President)
Mr J Blair-Gould
Mr A E Armitage

Between

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

For the Appellant: Mr G McIndoe , instructed by Messrs Robert Lizar, Solicitors
For the Respondent: Ms K Amos, Presenting Officer.

1. The Appellant, a citizen of Somalia, appeals, with permission, against the determination of an Adjudicator, Mr K Heynes, dismissing his appeal against the decision of the Respondent on 30 January 2001 to refuse to grant asylum but to grant exceptional leave to remain in the UK until 19 January 2005. This is therefore an upgrade appeal under section 69 (3) of the Immigration and Asylum Act 1999. Accordingly we are concerned only with the issue of asylum. Also, by reason of the date of the Respondent's decision, the "error of law" limitation on appeals to the Tribunal under the Nationality, Immigration and Asylum Act 2002 does not apply.

2. The Appellant’s claim can be summarised as follows. He is a member of the Tunni clan, who was born and brought up in Mogadishu. His father was a policeman who was shot by the Hawiye militia as a person in uniform working for the government. On another occasion, the Hawiye militia burned the Appellant's house, killed his brothers and injured his wife. In 1991 he left Somalia for Kenya with his wife and child. He remained there until he left Kenya for the United Kingdom in November 2000. He did not live in a refugee camp in Kenya but in Nairobi. He suffered harassment and discrimination from time to time by the Kenyan police because of his illegal status. He fears that on return to Somalia he will be killed.

3. The Adjudicator heard evidence from the Appellant and two witnesses. He accepted that the Appellant was in Somalia in 1991 and held that the corroborative evidence from the two supporting witnesses did little more than confirm that he was in Somalia at that time. He concluded that the Appellant's failure to seek international protection in Kenya or to regularise his status there over the many years that he lived in Nairobi was not indicative of a person in need of international protection. Moreover his father's death was because he was in uniform and perceived as working for the government and not on account of his clan. This suggested that the Appellant himself was not at risk on account of his clan. The Appellant gave different accounts of the circumstances in which his house was attacked. One occasion he said the house was caught in a crossfire. On another he said that the Hawiye deliberately targeted it. The Adjudicator having assessed the evidence with care, concluded that the Appellant's house and members of his family were casualties of the civil war at that time and had not been targeted by reason of their clan membership.

4. The Adjudicator also assessed with care the Appellant's claim of the association between the Tunni and other clans. He noted the submission on the Appellant's behalf that they were associated with the Bravanese. However on his analysis of the objective evidence he did not consider that this was as straightforward as suggested. Whilst they shared largely the same culture, the Bravanese considered themselves to be Benadiri, whilst the Tunni do not. The Tunni belong to the Digil clan family. The report on the minority groups in Somalia classifies the Tunni with the Digil and does not show them as a subdivision of the Bravanese. The Adjudicator noted that the Appellant claimed he was a Tunni Torre, and the evidence indicated that some Tunni Torre had a relationship with the Hawiye clan family. The Adjudicator considered further evidence on the subject including the Appellant's own claim in his asylum interview to be a member of the Reer Hamar. Taking the evidence as a whole, he concluded that the Appellant was a member of the Tunni clan, but was not Bravanese. He did not consider in the context of the current objective evidence that a Tunni or a Digil would be at any real risk on return to Mogadishu now. Moreover there were areas where the Tunni were present in significant numbers, such as Mekla, where the Appellant had spent some time before leaving for Kenya and he could live safely there are also. Accordingly the Adjudicator dismissed the asylum appeal.

5. The grounds of appeal challenge the Adjudicator's rejection of the link between the Tunni and the Bravanese and sought to produce further evidence. Permission to appeal was refused on the basis that the new evidence strengthened rather than weakened the Adjudicator's findings. However an application for statutory view to Collins J was successful and the appeal was remitted to the Tribunal on the following terms.
“The Adjudicator's determination in this case seems to me more thorough in its consideration of the link between Tunni and Bravanese than Hanaf, although I note the reference in Hanaf to other Adjudicators’ decisions (which probably should not have been cited). It seems to me in the circumstances that there are reasons other than the chances of success to grant permission to make this issue (ie Tunni/Bravanese) and the risk of persecution of minorities to be settled by a legal Tribunal. I am bound to say that this particular Appellant seems to have little merit having regard to his lengthy stay in Kenya and a finding of no prior persecution.”

6. The terms of this referral have been overtaken by events. Several legal panels of the Tribunal have very recently considered the precise questions posed by Collins J and given country guidance. The most recent decision is in MN (Town Tunnis regarded as Bravanese) Somalia CG 2004 UKIAT 00224, which we agree with and adopt. In that case the Tribunal reviewed and brought together the recent jurisprudence and in so doing had the benefit of hearing oral evidence from Dr Luling, which it accepted as reflecting a proper academic analysis consistent with her role and reputation as an anthropologist. Plainly the question of clan relationships, descriptions and perceptions is complex. However the Tribunal's conclusions can be summarised very briefly as this. There are in reality three distinct groups using the name Tunni. There are the “town” Tunnis, who live near to Brava and have practically assimilated into the Bravanese community and are perceived as Bravanese. There are the “country” Tunnis, who live away from the Brava area and should be considered as associated with the Digil clan family. Finally there are the “Tunni Torre”. They are described in MN as being “a negroid group federated to the Tunni of Brava as vassals”. However their situation was not considered in that determination, beyond distinguishing them from the two Tunni groups.

7. We have before us a further generic report from Dr Luling, dated 20 August 2004, about the “Tunni Brava”. It does not refer to this particular appeal, but in one passage gives some further information about the Tunni Torre. It states
“The distinct group known as the Tunni Torre belong to the so-called “Bantu”. They are descended either from slaves and freedmen of the Tunni, or from a group of Negro peasants who became the clients of the Tunni - or very likely from both.”
Thus it appears that the Tunni Torre are not part of the Tunni clan, but are a distinct group within the wider Bantu grouping.

8. The report on minority groups in Somalia reports that
“Perouse de Montclos note that some of the Tunni Torre of the hinterland claim a relationship with the Ajuran, the Gaalijaal and the Gurreh of the Hawiye clan, while others claim a relationship with the Helai and the Hadam of the Rahanweyn clan family. In concrete terms, they are the vassals of the Tunni Digil of the Brava Coast.”

9. The CIPU Report states in relation to the Bantu generally that
“6.100 According to the JFFMRs of December 2000 and July 2000, conditions for Bantu reportedly vary according to the region in which they live….They are usually able to remain in their home areas, to work mainly as labourers for the Somali clans that have taken their traditional land.
6.101 Bantu try to link themselves to the dominant Somali clans that have dispossessed them of most of their land, as, for their own security, they still need their protection.

10. The Danish Immigration Service report from January 2004 states
“Somalia features a number of low status and minority groups which are frequently subject to abuse and exploitation. The Somali Bantu population is now the best known of these minorities representing about 5% of the total population. The Bantu are prone to theft of their land, rape, forced labour, and a range of discriminatory behaviour.

11. The above summary reinforces the view expressed by the Tribunal in MN, and in the previous cases referred to in it, that the level of risk on return in every individual case relating to any alleged minority has to be assessed on its own facts, and thus “not every town Tunni is entitled to refugee status, any more than every Bravanese”. Indeed so, and this applies also to those who might fall within the broader Bantu grouping such as the Tunni Torre.

12. The difficulty in assessing this appeal is that the Adjudicator, being unaware of the various distinctions described above, did not make sufficient findings of fact. He accepted that the Appellant was Tunni but not that he was connected to the Bravanese. He recorded the Appellant's claim that he was a “Tunni Torre” but made no finding about whether he accepted this. In the light of the matters we have described above, it seems that these are contradictory findings. The Tunni are distinct from the Tunni Torre. Some Tunni can be associated with the Bravanese, whilst others are associated with the Digil. The Tunni Torre could be associated with a variety of different clans as well as being part of the wider Bantu grouping.

13. The Adjudicator also accepted the credibility of the death of the Appellant's father in Mogadishu and of the destruction of the Appellant's house and the death of various family members, although he did not consider that either was based on clan targeting. However the objective evidence shows that clan membership became an increasingly important factor as the civil war developed due to the growing need to engage group protection. The Appellant and his family left Somalia in the early stages of the civil war before this needfully evolved. The real issue is not whether there has been past persecution for a 1951 Convention reason, but whether the Appellant will on return face a real risk of such persecution on account of his clan membership. Such an assessment can only proceed on the basis of clear findings of fact as to exactly which clan and group the Appellant belongs to, the nature of the protection arising, and the risk if any that follows. There might also have to be an assessment of the internal flight option and undue hardship in the light of the Appellant present circumstances, which have not been explored in the determination.

14. Collins J in granting the statutory view was clearly of the opinion that this particular Appellant appears to have little merit, having regard to his lengthy stay in Kenya and the finding of no prior persecution. That may in the event be so, but we do not consider that this was intended as a binding judgment on us, given the new country guidance now available in MN. Nor was the guidance of MN available to the Adjudicator when he had to consider the very complex and at first sight conflicting objective evidence before him. We consider that a proper assessment of the risk on return now in the context of asylum must start from a firm finding of fact as to the Appellant's actual clan membership and the alliances and risks flowing therefrom. The determination does not contain such a finding and we are not able to cure this error.

15. Accordingly, this appeal is allowed to the limited extent that the Adjudicator's determination be set aside and the appeal be remitted for hearing afresh by Adjudicator other than Mr Heynes.

Spencer Batiste
(Vice President)

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