Tribunal decisions

The decision

ASYLUM AND IMMIGRATION TRIBUNAL

AM (Begedi – members generally at risk) Somalia [2005] UKAIT 00107

THE IMMIGRATION ACTS

Heard at: Field House
On 5 April 2005
Determination Promulgated
01st June, 2005
………………………………………

Before

Dr H H Storey (Senior Immigration Judge)
Mrs W Jordan

Between

Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the appellant: Mr M Schwenk, of Counsel, instructed by Howells Solicitors
For the respondent: Mrs L Singh, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Adjudicator, Mr V.P. McDade, in a determination notified on 22 October 2004, had allowed on asylum and human rights grounds the appeal of the appellant, a national of Somalia, against a decision refusing to grant further leave or vary the grounds of leave. The respondent appealed to the Tribunal. The grounds were essentially threefold. Firstly it was contended that the Adjudicator should have accepted in the light of the expert evidence that the appellant's clan, the Begedi, were linked with the Digil/Rahanweyne who, as found by the Tribunal in the Country Guideline case SH [2004] UKIAT 00272, were not a minority clan. Secondly, the Adjudicator had erred, it was argued, in finding it was unnecessary to consider the substance of the appellant's claim, despite challenges to his account in the refusal letter. In particular he made no findings as to whether the appellant encountered difficulties in Mogadishu or whether he was ever in Afgoye:

‘In failing to make any findings on this point the assertion that Begedi in Afgoye can be considered to be Benadiri is of little value because no findings have been made as to whether the Adjudicator accepts the appellant is in fact from that area.’

2. Thirdly it was submitted that the Adjudicator had erred in law by failing to consider in the alternative the relocation issue:

‘In light of the findings of the Tribunal in SH, the Adjudicator ought to have considered whether the appellant could relocate to the Bay and Bakool region where the Rahanweyne have consolidated their control to avoid persecution from other majority clans.’

3. It was conceded by the respondent that the appellant was a member of the Begedi.

4. We do not consider that the grounds demonstrate a material error or law on the part the Adjudicator.

5. The Adjudicator was fully aware of the findings of the Tribunal in the SH case: see paragraph 10. He also gave careful consideration to the submission made to him that the Begedi were to be linked with Digil/ Rahanweyne and in consequence seen as an “intermediate” rather than a minority clan. In the same paragraph he wrote:

‘The respondent has provided me with a list of Somali clans and this list describes the Begedi as “Digil” – “links with Benadiri in Afgoye”. The respondent draws my attention to page 47 at 11.1 in the Report on Minority Groups. This paragraph suggests Digil, also known as the Imirifle and Rahanweyne, are halfway between a Somali clan and a minority.’

6. However, the Adjudicator decided that this evidence was not decisive. His reasons are best set out by giving the full text of the remainder of his paragraph 10:

‘The appellant's representative, for his part, has drawn my attention to the expert evidence of Anita Adam and Dr Virginia Luling, to the Tribunal Country Guideline case of KS [2004] UKIAT 00271 and the Home Office Operational Guidelines (undated). As far as the report by Anita Adam is concerned she concluded that the Begedi are a minority clan and are a clan of the Digil Rahanweyn. She states that:

“They are an unarmed group and are not affiliated to the dominant pastoralist Somali clans further north, so the civil war post-civil war period have been extremely vulnerable to having their lands occupied and properties looted.”

She goes on to say as follows:

“In the academic literature, in strict genealogical descent terms the Begedi are classified within the Digil, which is a large though not politically powerful clan family of southern Somalia, and not one of the major armed clans who have been part of the struggle for control of national resources. In practice they are much more closely allied with the coastal Benadiri groups considering themselves as a Benadiri minority and associating with the Reer Hamar rather than the Digil. (my italics)

Dr Virginia Luling states as follows:

“(The Begedi): In the civil war they have suffered badly. The militia have treated them as inferior and without rights. They are looked down on by such groups as the Habir Gidir who come from a nomadic background and are in control of much of southern Somalia. For instance in 1999 many Begedi were killed in Awdhegle by the militia of the Garre (Digil) clan, because they had refused to support the Garre in their war against the Habir Gedir. This particular episode is over, but it shows how vulnerable groups like the Begedi are. An informant in Somalia tells them that they may still be kidnapped and harassed on a daily basis ... groups like the Bededi ... can also be classed as Benadiri because they are light skinned (Gibil Cad) and are treated in the same way.”

Dr Luling draws attention to the fact that some expert in the joint British Danish Fact Finding Mission to Nairobi consider the Digil and Rahanweyne as being minority groups. Undated operational guidance note from the Home Office gives guidance as the way in which Benadiri ethnicity is to be established. It seems to suggest that in Afgoye the Begedi cans be considered to be Benadiri. In the Country Guideline case of UKIAT 00271 it is suggested that where membership of a minority clan generally does give rise to a real risk “the claim will normally depend on the fact the claimant is genuinely a member of that minority clan”. In this case the Home Office have conceded that the appellant is a member of the clan he claims. Having considered the objective evidence before me I hold that Begedi can be classified as a minority clan. Further, in the light of the expert evidence I have considered, I am satisfied that members of the clan have been shown to be at real risk of persecution and that there is no effective protection for them from any more powerful clan. This being so, I am bound to conclude that this appellant, as a member of this clan, would be at real risk of persecution if he were returned to Somalia. It is unnecessary for me to consider the substance of the appellant's claim in greater detail in view of my findings in relation to the Begedi clan.’

7. At this point we remind ourselves that we can only interfere with the determination of an Adjudicator in respect of a determination notified after 9 June 2003 if satisfied that there is a material error of law: see CA [2004] EWCA Civ 1165. So long as an Adjudicator’s decision is within the range of reasonable responses, it will not be legally erroneous.

8. It seems to us that this Adjudicator’s determination was simply one which arrived at findings which were ones reasonably open to him on the evidence. Given in particular that he was faced with background materials which presented a somewhat equivocal picture of the position of the Begedi, he was fully justified in placing particular reliance on the two experts reports before him from Dr Anita Adam and Dr Virginia Luling. Read together these furnished a compelling explanation as to why accounts as to the minority status of the Begedi differed. This explanation was, in Dr Adam’s words, that although in strict genealogical descent terms the Begedi are classified with the Digil, in practice their association and alliances lie with the Benadiri/ Reer Hamar, not the Digil. Furthermore, as Dr Luling emphasised, the Begedi, being light-skinned, received much the same treatment as the Benadiri.

9. The Adjudicator does not comment on the credential of these two country experts who provided reports on the Begedi. However, it is worthy of note that the Tribunal in a number of Country Guidance cases has considered Dr Virginal Luling to be an established expert on Somalia whose reports are to be taken seriously. In any event we note that the grounds of appeal in this case do not seek to impugn the expertise of either Dr Luling or Dr Adam.

10. Given the fact that the Adjudicator had before him weighty expert reports specifically resolving the apparent conflict found in other sources as to the minority status of the Begedi, we consider he was fully entitled to conclude that the Begedi was a minority clan which was subject to persecutory treatment at the hands of majority clans and would have no effective source of protection against such treatment.

11. The Adjudicator's finding that the Begedi is a minority clan also resolves the issues raised by the second and third grounds of appeal. As the Adjudicator correctly noted, country guidance as to the proper approach to cases in which it is established that a person is a member of a minority clan subject to persecutory treatment at the hands of majority clans was set out in KS [2004] UKIAT 00271. Such a case will normally depend on whether in fact the claimant is genuinely a member of that minority clan. Furthermore, the Refugee Convention ground in this case is manifestly obvious, namely clan identity, i.e. race.

12. Having satisfied himself that the appellant was a member of a minority clan at real risk of persecution who would not be able to obtain effective protection from any other powerful clan, the Adjudicator was not obliged to go any further. He was entitled to conclude that the appeal should be allowed on asylum and human rights grounds without going on to consider the substance of the appellant's claim in greater detail. The only possible basis suggested by Mrs Singh for considering the appellant would not on return be exposed to the same treatment as the Begedi generally received, was that he could relocate to the Bay and Bakool area. However, in the light of the findings of the two experts on which the Adjudicator placed reliance, the Rahanweyne would not see the Begedi as a clan to whom they would extend protection.

13. So far as the points raised in the grounds concerning the failure of the Adjudicator to make any findings as to what happened to the appellant in Mogadishu or whether he was ever in Afgoye, the whole point of KS was to identify cases in which specific findings as to location or a particular history are not essential in view of what is known about the position of a minority clan in Somalia, generally. Furthermore, given that on the Adjudicator's proper findings the Begedi generally do not have any majority (or intermediate) clan patrons to whom they can look for protection, there would always be the further problem in such cases of showing that members of the Begedi, in the absence of exceptional circumstances, could either reside or move about in Somali safely.

14. For the above reasons we have decided that the Adjudicator did not materially err in law. Thus there is no basis for reaching a different decision on reconsideration.

15. Whilst the parties did place before us a significant number of background materials on the Begedi, including two expert reports, we do not consider that these were comprehensive. Furthermore, in order to reach a decision in this case it has only been necessary to decide in relatively brief terms whether the Adjudicator’s findings were within the range of reasonable responses. For these reasons we have decided not to report this case as country guidance. However, we shall report it. That represents in our view a way of putting parties on notice in future appeals concerned with members of the Begedi that we consider that the two expert reports from Dr Anita Adam and Dr Virginia Luling constitute strong reasons for considering that, notwithstanding genealogical links with the Digil, the Begedi, are a persecuted minority clan, to be classified together with the Benadiri/Reer Hamar. We would require compelling evidence or argument before we would put aside the common view expressed by these two experts.

16. For the above reasons we have concluded that there was no material error of law and accordingly the decision of the Adjudicator must stand.

DR H H STOREY
SENIOR IMMIGRATION JUDGE