[2005] UKIAT 63
- Case title: AI (Statutory review, Evidence)
- Appellant name: AI
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Somalia
- Judges: Hon Mr Justice Ouseley, His Hon Judge G Risius, Ms C Jarvis
- Keywords Statutory review, Evidence
The decision
AI (Statutory Review – evidence) Somalia [2005] UKIAT 00063
IMMIGRATION APPEAL TRIBUNAL
Date: 7 December 2004
Date Determination notified:
9th March 2005..............
Before:
The Honourable Mr Justice Ouseley (President)
Ms C Jarvis (Vice President)
His Honour Judge G Risius CB (Vice President)
Between:
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
Appearances:
For the Appellant: Ms R Kotak, instructed by Wilson & Co
For the Respondent: Mr A Sheikh, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal against the determination of an Adjudicator, Mrs C Scott-Baker, and promulgated on 29 April 2004. She dismissed the appeal of the Appellant from the refusal of the Secretary of State on 4 February 2004 to grant asylum. He granted leave to remain until 20 December 2005. This was because of the age of the Appellant, who was born on 20 December 1987 in Somalia.
2. She claimed to have left Somalia in 1999 to spend five years in Kenya before coming to the United Kingdom, where she claimed asylum two days after arrival in January 2004. She based her claim to asylum on membership of a minority clan, the Reer Hamar. She was disbelieved. She was refused leave to appeal, having produced an expert report after the adverse determination, in order to deal with aspects upon which the Adjudicator had disbelieved her. This refusal was overturned on statutory review on the grounds that an item of background material had been misunderstood and because the Tribunal, in refusing leave to appeal ought arguably to have admitted the subsequent report of the Appellant’s expert. It was thought relevant to that argument that it had been produced specifically to deal with the Adjudicator’s findings.
3. We would like to make two observations about this grant of Statutory Review. First, the Tribunal cannot admit fresh evidence on appeal unless there is a material error of law in the determination where the determination is after 8 June 2003 as here. The same principle therefore applies to the Administrative Court when deciding whether it is arguable that the Adjudicator made a material error of law and that the Tribunal should have so concluded. So fresh evidence should not be adduced to it as a basis for granting review, unless it is relevant to showing that there was an arguably material error of law in the Adjudicator’s determination eg procedural unfairness or to showing that once such an error had been found to exist, the new evidence, which could then become admissible, could lead to a different outcome on the appeal. Even where the Tribunal admits fresh evidence on appeal, it will not normally do so where the evidence would fail the Ladd v Marshall tests. Thus the ultimately admissible fresh evidence is nearly always confined to that which deals with events arising after the Adjudicator’s determination. It is almost never admitted, even after an error of law has been found, on the slender basis that it seeks to take issue with the Adjudicator s findings. Such evidence almost always fails the Ladd v Marshall tests. It was an unfortunate commonplace of the jurisdiction that Appellants sought to improve upon their case after it had been lost, with further evidence simply designed to counter the Adjudicator’s justified conclusions. It was a practice of doubtful merit when the jurisdiction extended to fact and law, but it has no place in a jurisdiction confined to points of law. This will apply to reconsiderations within the AIT and on review.
4. Second, it is for the Tribunal to decide whether or not, in an appeal before it after Statutory Review, it should exercise its discretion to admit any evidence. Practitioners should not assume that a grant of statutory review based on fresh evidence will mean that the evidence will be admitted. The IAT will apply its Rules and discretions. The same principles will apply to the AIT.
5. Turning to the merits of this appeal, there were three reasons why the Adjudicator rejected the claim that the Appellant was a member of the Reer Hamar. First, she thought it implausible in the light of the background evidence that there would have been two marriages between minority and majority clans as the Appellant’s evidence alleged. The grandmother who gave evidence said that she was a Reer Hamar who had married into the Majerteen sub-clan of the Darod majority clan. The Appellant’s mother had then married out of that majority clan into the Reer Hamar. It was accepted that mixed marriages were rare; both these marriages would have preceded the 1991 civil war; a female majority clan member marrying into a minority clan was implausible; the argument that because the grandmother had made a mixed marriage, a second mixed one was the more likely was rejected. The Adjudicator said:
“I am not persuaded that two cross-clan marriages in this situation is particularly plausible, particularly as the appellant’s grandmother would have known of the advantages of marrying into a majority clan and the security that would have been offered to her.”
6. Second, the Adjudicator thought that the non-use of Reer Hamar by the Appellant would mean that the Appellant would not be perceived as a member of the Reer Hamar. At paragraph 49, she said:
“Expert evidence could have been produced to assist on this vexed question of language which in particular here was complicated by intermarriage between clans but on my assessment of the facts I am not persuaded through the non-use of the Reer Hamar dialect that the appellant would be perceived as being a member of the Reer Hamar clan and identified as such. There would be family living in Somalia who are of the majority clan as the appellant’s witness told me that she had had seven children and therefore there would be some family in Somalia.”
7. Third, the Adjudicator shared the Secretary of State’s concerns that if the Appellant were indeed Reer Hamar she had stayed in Mogadishu until 1998:
“The objective material before me indicates that the Benadiri clans were particularly at risk and vulnerable during the early years of the civil war conflict and whilst she stated that it was not her choice but her elders’ choice for her to remain living in Mogadishu I am not persuaded that the family would not have moved at a much earlier date if she had been of the Reer Hamar clan as she claims as they would have been at particular risk. Her account in this regard is therefore implausible.”
8. The Adjudicator had finally concluded that the Appellant had come to the United Kingdom to join her grandmother, knowing that she was here, rather than because she was in need of international protection. She had family living in Mogadishu, and even if a Reer Hamar, had family on her mother’s side in a majority clan who could provide sufficient protection.
9. The first ground of appeal challenged the conclusions on the plausibility of the two inter-clan marriages. It was accepted that there was no arguable ground here without the expert’s report. As we say in respect of the other grounds, there is no error of law and there is no basis for its reception. It cannot show that there was an error of law by the Adjudicator. We cannot admit it.
10. Even if there had been an error of law in another aspect, it is very doubtful that we would have considered it because it fails the Ladd v Marshall tests and it does not cast a light on other new post determination evidence. There was no reason why it should not have been produced to the Adjudicator. The reason given was that until the determination was received, the Appellant and her grandmother did not know that the inter-marriage would be an issue which went to credibility. Yet the Appellant knew full well that what was at issue was her asserted membership of a minority clan. The Appellant was on notice from the Secretary of State’s refusal letter that the language issue was important; she could call an expert to deal with it if an expert were relevant. There was cross-examination at the hearing before the Adjudicator about both clan and parentage. The evidence about the relationships was her way of overcoming the problem that she knew nothing of the speech of the minority clan. (We use that word because there is an issue, although it does not arise here, as to whether Reer Hamar is a different language from Somali, or a dialect or a different means of pronouncing the same words.) Where evidence is given to overcome credibility problems it should be obvious to all that it itself risks being disbelieved and may create further problems in the process.
11. In any event, as Ms Kotak accepted, such marriages were rare, and her expert’s report said that the Reer Hamar tradition was to marry from other Reer Hamar subgroups. The contention that there had for a while after 1960 been a freer attitude said nothing about frequency, or the prospect of a majority clan female marrying a minority clan male. And two in the family is not discussed on the basis put forward by Ms Kotak that somehow one made a second less implausible. Nor does it deal with the specific point about intermarriage of the Benadiri upon which the Adjudicator specifically relied. It does not help the Appellant.
12. The next ground which we take relates to the adverse comment by the Adjudicator as a result of the Appellant remaining in Mogadishu until 1998. Ms Kotak and the judge referred to a passage from the Minority Groups Report as showing that 30 percent of the Reer Hamar had stayed in Mogadishu. But that is a misunderstanding of what it means. It says:
“Because of this, and because the Reer Hamar are unarmed, their homes were repeatedly looted. The same sources estimated that more than 70% of the Reer Hamar population in Mogadishu fled the country during the civil war. In January 1999 the War-torn Societies Project (WSP) in Nairobi and other UN agencies informed the Danish Immigration Service that the Benadiri community was still facing serious human rights violations in Mogadishu, and that members of this community would probably never be able to return in safety to Mogadishu.”
13. “This” refers to the wealth of the Reer Hamar. The Report refers to “more than” 70 percent fleeing. That “more than 70 per cent” were not those who just fled from Mogadishu but those who fled the country, with the implication that some others at least left Mogadishu for elsewhere in Somalia. The “civil war”, during which more than 70 per cent fled the country, refers to 1991-1992 and so the passage does not refer at all to the number who might have remained in 1998. It is only plausible to infer not that 30 per cent remained in Mogadishu, but that over the succeeding years to 1998, many more would have left as their numbers diminished rapidly. It is not a statement of the numbers in Mogadishu in 1998 or later. The Report said later that there were still some Benadiri in Mogadishu but the number was unknown.
14. Thirdly, we deal with the speech or language issue. There was some discussion about whether or not Reer Hamar was a language, a dialect or accent. But that is irrelevant to this case. It is certainly not the case that the Appellant lost because she did not understand the differences between those words, let alone the differences between their equivalents in Somali, if any. The point was that the Appellant did not understand people talking in the way in which Reer Hamar did. It was the Appellant whose evidence asserted that there was a difference, however described, and that it was one which made her unable to converse with Reer Hamar. She had to explain how as a member of that sub clan she was unable to converse in that manner with them, speaking only Somali. The Adjudicator simply finds that as she is unable to speak in that manner, she would not be thought of as Reer Hamar, even if in effect her family was as inter-married as she said. That is not a challengeable conclusion.
15. The background evidence to which we were referred is irrelevant to that issue. It only serves to show that there are dialects and sub-dialects spoken by the Benadiri and that the Reer Hamar speak a dialect called Af Reer Hamar. Most are also able to speak Somali. The explanation that the Appellant could not speak it even though her father was Reer Hamar, because her mother did not speak it, and that her mother did not speak even though her mother but not her father had spoken it, was obviously not persuasive. This is what then led on to various attempts to explain that the differences were not so great. But that does not undermine the conclusion that she would not be seen as Reer Hamar.
16. The conclusion that she had family from a majority clan in Mogadishu who could protect her contains no error of law.
17. This appeal is dismissed. It is reported for what we say about the evidence on Statutory Review.
MR JUSTICE OUSELEY
PRESIDENT
IMMIGRATION APPEAL TRIBUNAL
Date: 7 December 2004
Date Determination notified:
9th March 2005..............
Before:
The Honourable Mr Justice Ouseley (President)
Ms C Jarvis (Vice President)
His Honour Judge G Risius CB (Vice President)
Between:
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
Appearances:
For the Appellant: Ms R Kotak, instructed by Wilson & Co
For the Respondent: Mr A Sheikh, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal against the determination of an Adjudicator, Mrs C Scott-Baker, and promulgated on 29 April 2004. She dismissed the appeal of the Appellant from the refusal of the Secretary of State on 4 February 2004 to grant asylum. He granted leave to remain until 20 December 2005. This was because of the age of the Appellant, who was born on 20 December 1987 in Somalia.
2. She claimed to have left Somalia in 1999 to spend five years in Kenya before coming to the United Kingdom, where she claimed asylum two days after arrival in January 2004. She based her claim to asylum on membership of a minority clan, the Reer Hamar. She was disbelieved. She was refused leave to appeal, having produced an expert report after the adverse determination, in order to deal with aspects upon which the Adjudicator had disbelieved her. This refusal was overturned on statutory review on the grounds that an item of background material had been misunderstood and because the Tribunal, in refusing leave to appeal ought arguably to have admitted the subsequent report of the Appellant’s expert. It was thought relevant to that argument that it had been produced specifically to deal with the Adjudicator’s findings.
3. We would like to make two observations about this grant of Statutory Review. First, the Tribunal cannot admit fresh evidence on appeal unless there is a material error of law in the determination where the determination is after 8 June 2003 as here. The same principle therefore applies to the Administrative Court when deciding whether it is arguable that the Adjudicator made a material error of law and that the Tribunal should have so concluded. So fresh evidence should not be adduced to it as a basis for granting review, unless it is relevant to showing that there was an arguably material error of law in the Adjudicator’s determination eg procedural unfairness or to showing that once such an error had been found to exist, the new evidence, which could then become admissible, could lead to a different outcome on the appeal. Even where the Tribunal admits fresh evidence on appeal, it will not normally do so where the evidence would fail the Ladd v Marshall tests. Thus the ultimately admissible fresh evidence is nearly always confined to that which deals with events arising after the Adjudicator’s determination. It is almost never admitted, even after an error of law has been found, on the slender basis that it seeks to take issue with the Adjudicator s findings. Such evidence almost always fails the Ladd v Marshall tests. It was an unfortunate commonplace of the jurisdiction that Appellants sought to improve upon their case after it had been lost, with further evidence simply designed to counter the Adjudicator’s justified conclusions. It was a practice of doubtful merit when the jurisdiction extended to fact and law, but it has no place in a jurisdiction confined to points of law. This will apply to reconsiderations within the AIT and on review.
4. Second, it is for the Tribunal to decide whether or not, in an appeal before it after Statutory Review, it should exercise its discretion to admit any evidence. Practitioners should not assume that a grant of statutory review based on fresh evidence will mean that the evidence will be admitted. The IAT will apply its Rules and discretions. The same principles will apply to the AIT.
5. Turning to the merits of this appeal, there were three reasons why the Adjudicator rejected the claim that the Appellant was a member of the Reer Hamar. First, she thought it implausible in the light of the background evidence that there would have been two marriages between minority and majority clans as the Appellant’s evidence alleged. The grandmother who gave evidence said that she was a Reer Hamar who had married into the Majerteen sub-clan of the Darod majority clan. The Appellant’s mother had then married out of that majority clan into the Reer Hamar. It was accepted that mixed marriages were rare; both these marriages would have preceded the 1991 civil war; a female majority clan member marrying into a minority clan was implausible; the argument that because the grandmother had made a mixed marriage, a second mixed one was the more likely was rejected. The Adjudicator said:
“I am not persuaded that two cross-clan marriages in this situation is particularly plausible, particularly as the appellant’s grandmother would have known of the advantages of marrying into a majority clan and the security that would have been offered to her.”
6. Second, the Adjudicator thought that the non-use of Reer Hamar by the Appellant would mean that the Appellant would not be perceived as a member of the Reer Hamar. At paragraph 49, she said:
“Expert evidence could have been produced to assist on this vexed question of language which in particular here was complicated by intermarriage between clans but on my assessment of the facts I am not persuaded through the non-use of the Reer Hamar dialect that the appellant would be perceived as being a member of the Reer Hamar clan and identified as such. There would be family living in Somalia who are of the majority clan as the appellant’s witness told me that she had had seven children and therefore there would be some family in Somalia.”
7. Third, the Adjudicator shared the Secretary of State’s concerns that if the Appellant were indeed Reer Hamar she had stayed in Mogadishu until 1998:
“The objective material before me indicates that the Benadiri clans were particularly at risk and vulnerable during the early years of the civil war conflict and whilst she stated that it was not her choice but her elders’ choice for her to remain living in Mogadishu I am not persuaded that the family would not have moved at a much earlier date if she had been of the Reer Hamar clan as she claims as they would have been at particular risk. Her account in this regard is therefore implausible.”
8. The Adjudicator had finally concluded that the Appellant had come to the United Kingdom to join her grandmother, knowing that she was here, rather than because she was in need of international protection. She had family living in Mogadishu, and even if a Reer Hamar, had family on her mother’s side in a majority clan who could provide sufficient protection.
9. The first ground of appeal challenged the conclusions on the plausibility of the two inter-clan marriages. It was accepted that there was no arguable ground here without the expert’s report. As we say in respect of the other grounds, there is no error of law and there is no basis for its reception. It cannot show that there was an error of law by the Adjudicator. We cannot admit it.
10. Even if there had been an error of law in another aspect, it is very doubtful that we would have considered it because it fails the Ladd v Marshall tests and it does not cast a light on other new post determination evidence. There was no reason why it should not have been produced to the Adjudicator. The reason given was that until the determination was received, the Appellant and her grandmother did not know that the inter-marriage would be an issue which went to credibility. Yet the Appellant knew full well that what was at issue was her asserted membership of a minority clan. The Appellant was on notice from the Secretary of State’s refusal letter that the language issue was important; she could call an expert to deal with it if an expert were relevant. There was cross-examination at the hearing before the Adjudicator about both clan and parentage. The evidence about the relationships was her way of overcoming the problem that she knew nothing of the speech of the minority clan. (We use that word because there is an issue, although it does not arise here, as to whether Reer Hamar is a different language from Somali, or a dialect or a different means of pronouncing the same words.) Where evidence is given to overcome credibility problems it should be obvious to all that it itself risks being disbelieved and may create further problems in the process.
11. In any event, as Ms Kotak accepted, such marriages were rare, and her expert’s report said that the Reer Hamar tradition was to marry from other Reer Hamar subgroups. The contention that there had for a while after 1960 been a freer attitude said nothing about frequency, or the prospect of a majority clan female marrying a minority clan male. And two in the family is not discussed on the basis put forward by Ms Kotak that somehow one made a second less implausible. Nor does it deal with the specific point about intermarriage of the Benadiri upon which the Adjudicator specifically relied. It does not help the Appellant.
12. The next ground which we take relates to the adverse comment by the Adjudicator as a result of the Appellant remaining in Mogadishu until 1998. Ms Kotak and the judge referred to a passage from the Minority Groups Report as showing that 30 percent of the Reer Hamar had stayed in Mogadishu. But that is a misunderstanding of what it means. It says:
“Because of this, and because the Reer Hamar are unarmed, their homes were repeatedly looted. The same sources estimated that more than 70% of the Reer Hamar population in Mogadishu fled the country during the civil war. In January 1999 the War-torn Societies Project (WSP) in Nairobi and other UN agencies informed the Danish Immigration Service that the Benadiri community was still facing serious human rights violations in Mogadishu, and that members of this community would probably never be able to return in safety to Mogadishu.”
13. “This” refers to the wealth of the Reer Hamar. The Report refers to “more than” 70 percent fleeing. That “more than 70 per cent” were not those who just fled from Mogadishu but those who fled the country, with the implication that some others at least left Mogadishu for elsewhere in Somalia. The “civil war”, during which more than 70 per cent fled the country, refers to 1991-1992 and so the passage does not refer at all to the number who might have remained in 1998. It is only plausible to infer not that 30 per cent remained in Mogadishu, but that over the succeeding years to 1998, many more would have left as their numbers diminished rapidly. It is not a statement of the numbers in Mogadishu in 1998 or later. The Report said later that there were still some Benadiri in Mogadishu but the number was unknown.
14. Thirdly, we deal with the speech or language issue. There was some discussion about whether or not Reer Hamar was a language, a dialect or accent. But that is irrelevant to this case. It is certainly not the case that the Appellant lost because she did not understand the differences between those words, let alone the differences between their equivalents in Somali, if any. The point was that the Appellant did not understand people talking in the way in which Reer Hamar did. It was the Appellant whose evidence asserted that there was a difference, however described, and that it was one which made her unable to converse with Reer Hamar. She had to explain how as a member of that sub clan she was unable to converse in that manner with them, speaking only Somali. The Adjudicator simply finds that as she is unable to speak in that manner, she would not be thought of as Reer Hamar, even if in effect her family was as inter-married as she said. That is not a challengeable conclusion.
15. The background evidence to which we were referred is irrelevant to that issue. It only serves to show that there are dialects and sub-dialects spoken by the Benadiri and that the Reer Hamar speak a dialect called Af Reer Hamar. Most are also able to speak Somali. The explanation that the Appellant could not speak it even though her father was Reer Hamar, because her mother did not speak it, and that her mother did not speak even though her mother but not her father had spoken it, was obviously not persuasive. This is what then led on to various attempts to explain that the differences were not so great. But that does not undermine the conclusion that she would not be seen as Reer Hamar.
16. The conclusion that she had family from a majority clan in Mogadishu who could protect her contains no error of law.
17. This appeal is dismissed. It is reported for what we say about the evidence on Statutory Review.
MR JUSTICE OUSELEY
PRESIDENT