Tribunal decisions

The decision

NM and Others (Lone women – Ashraf) Somalia CG [2005] UKIAT 00076

IMMIGRATION APPEAL TRIBUNAL

Date: 14 February 2005
Date Determination notified:
31 March 2005

Before:

The Honourable Mr Justice Ouseley (President)
Dr H H Storey (Vice President)
His Honour Judge G Risius CB (Vice President)

Between:

[ ] (1)
[ ](2)
[ ](3)
CLAIMANTS

and

Secretary of State for the Home Department
RESPONDENT

Appearances
For the Appellants: Mr M O’Conner, instructed by Sultan Lloyd Solicitors (1)
Mr M Rana, instructed by Aden & Co Solicitors (2)
Mr Z Ahmed of Asghar & Co (Slough) (3)
For the Respondent: Mr P Deller, Home Office Presenting Officer

DETERMINATION AND REASONS

1. We deal in this determination with the appeals of three nationals of Somalia. They were directed to be heard together under Rule 51 of the Immigration and Asylum Appeals (Procedure) Rules 2003 because they raised the common issue of whether the Claimants would face a real risk of serious harm by virtue of being lone women, ie women returning on their own to Somalia. Although only the appeal in respect of the third Claimant was brought by the Secretary of State, we shall refer to each of them as (first, second and third) “Claimants”. This case is reported as country guidance for what it says about this issue, Ashrafs, and the related issue of risk to returnees.

2. Prior to our hearing of these three appeals, there was a directions hearing. That gave permission for those representing the first Claimant to call Professor I M Lewis to speak to his expert report and identified five main issues – all relating to the issue of risk on return to lone women. Steps were taken to ensure that the parties placed before the Tribunal the latest background country materials as well as reports from experts. In addition to a written report from Professor Lewis, we also had a written report from Dr Virginia Luling dated 25 January 2005 entitled “Opinion on the Return of Unaccompanied Women to Mogadishu”. We are grateful to those representing the three Claimants for the efforts they made to combine their own researches and deployment of experts. By dint of their endeavours we have been able to approach our deliberations on these appeals in the light of a good range of materials.

3. We set out in Appendix A the cases which were cited to us.

4. The principal background materials placed before us are listed at Appendix B. They include the joint Danish, Finnish, Norwegian and British Fact-Finding Mission to Nairobi, Kenya 7-12 January 2004, published 17 March 2004 entitled “Human Rights and Security in Central and Southern Somalia” which we refer to as the Joint Mission Report, 2004.

5. Although these three appeals have been heard together for the purpose of enabling the Tribunal to give country guidance, our jurisdiction in respect of them is confined to that of error of law. The determination in each was promulgated after 9 June 2003. Accordingly we cannot have regard to post-promulgation materials in determining the appeals, unless satisfied that the determinations disclose a material error of law: CA [2004] EWCA Civ 1165.

6. The first Claimant (NM), who is now 29, appeals against the determination of an Adjudicator, Mrs F M Kempton, notified on 23 June 2003, dismissing her appeal on asylum and human rights grounds against a decision to give directions for removal and to refuse to grant asylum. The second Claimant (SS), now aged 19, brings her appeal against the determination of an Adjudicator, Mrs C J Lloyd, notified on 2 August 2004, dismissing her appeal on asylum and human rights grounds against a decision to give directions for removal and to refuse to grant asylum. The third Claimant (LA), who is now 20, defends an appeal brought by the Secretary of State against the determination of an Adjudicator, Mr J C Boyd, notified on 23 September 2004, dismissing her asylum, but allowing her Article 3 human rights, grounds of appeal against a decision to remove her by way of directions, and refusing to grant asylum.
NM

7. The Adjudicator accepted the core of her account as true. She accepted she was a member of the Ashraf clan, that the Ashraf was a minority clan, and that the whole area of Mogadishu where she lived (Hamar Wayne) had been targeted by the USC and by Hawiye clan militias during the 1990s. There had been four major attacks on the Claimant’s family. The last of those, in 1998, left her husband permanently disabled. Despite a lack of specific incidents subsequently, the family was often forced to hide in the forest to avoid further attacks. Some time after 1998 she was divorced when her husband married another woman. Her troubles continued right up until she left the country with her two children on 2 January 2003.

8. Notwithstanding these findings, the Adjudicator decided to dismiss the appeal. Her first reason was that the CIPU Report of April 2002 made no mention of the Ashraf or Hassan in Mogadishu, but did confirm that small clans were safest where they enjoyed the protection of a dominant clan. At paragraph 27 she stated:

“At paragraph 4.35 it is stated that the small Asharaf [sic] group in Gedo remained aloof from the clan fighting and enjoys a secure position …. According to para 5.3, most Somalis ensure their personal safety by residing in the ‘home areas’ of their clan and this may involve a form of internal displacement for some people in Mogadishu who have had to move to traditional clan areas elsewhere. The appellant referred to living with relatives for a while in Afgoye, and so presumably there are other Ashraf clan members in that rural area, where the appellant could have gone if she was afraid, rather than seeking international protection.”

9. Her other main reason was set out at para 28 as follows:

“I do not consider that the appellant has a Convention reason and so she has not been persecuted for any such reasons. As a result, she does not come under the protecting umbrella of the Convention. She is the victim, like so many of her countrymen and women of a civil war as discussed in the decision in Adan. As such she is just one of many people who have suffered but who has not been individually targeted due to her ethnic origin. On return, she will be no different from anyone else. There is nothing to single out her circumstances. Given that the Ashraf have in particular been mentioned at 4.35 as enjoying a secure position, I cannot see what difficulty the appellant will have on return. She will have the protection of a clan, which in itself appears to be protected.”

10. She also considered that the “catalyst” for the Claimant’s decision to flee Somalia was her divorce.

11. Mr O’Connor relied on two main submissions. Firstly, the Adjudicator was wrong to dismiss the appeal on the basis that the Claimant was not personally targeted. Close family members had been murdered or maimed and the Adjudicator had accepted that the area where she resided was targeted. Secondly, the Adjudicator had erred in failing to consider that as a divorced woman from a minority clan returning alone to Somalia she would be particularly vulnerable to intimidation, physical and sexual violence against which she would receive no protection from any of the majority clans. Having had no contact with her family since arriving in the United Kingdom, she would in all likelihood have to go into a camp for internally displaced people where she would face a serious risk of rape and violence. Even if she were able to contact her family, evidence showed that minority clans are forced to live in desperate conditions of poverty and suffered discrimination because of their minority status.

12. We find that her decision was legally flawed. Firstly, she erred in her approach to the issue of past persecution. She considered that the Claimant had not experienced persecution because she had not been individually targeted. However, on the basis of her own findings, the absence of individual targeting did not mean that this Claimant had not suffered harm personal to her. She had accepted that majority clan militia had targeted the whole of the Hamar Wayne area where the Claimant lived. She had also accepted that as a result of this targeting, close members of the Claimant’s family had been killed or injured. The Claimant herself had only been able to avoid attacks by hiding in the forest. Thus the Claimant was directly and personally affected by targeted acts of violence.

13. Of greater concern was her approach to current risk. She concluded that because the Claimant had not been personally targeted, there was no real risk of persecution on return. Sometimes that may be a proper deduction. But where the basis of the persecution is tribal or clan, and it would be true for other aspects of ethnicity, the risk on return is much less easy to judge on the basis of an absence of past individual persecution. The risk has to be judged against the prospects of an individual of that ethnicity being persecuted, and the particular personal identity of that individual is likely to be rather less important.

14. Secondly, the Adjudicator appears to have misconstrued the CIPU materials that were before her. She considered there would not be a prospective risk on return because the April 2002 CIPU Report at para 4.35 mentioned the Ashraf as enjoying a secure position, being protected by a majority clan. That was incorrect. The April 2002 CIPU Report said nothing about the Ashraf. The report she actually made reference to was the October 2002 CIPU report.

15. The October 2002 CIPU Report does not state that the Ashraf were a clan protected by a majority clan. Paragraph 4.35 is confined to a newly included observation about the Ashraf in one locality only - Gedo - enjoying a secure position; but the source on which it relies for this observation dated from 1997. Elsewhere the October CIPU identified the Benadiri (of whom the Ashraf form a sub-group) as being a “particularly disadvantaged” minority group and one “targeted by clan militia since the collapse of central authority in 1991”: see paragraphs 5.4 and 5.41. In each of those respects, the Adjudicator ignored material considerations.

16. Those errors had a consequential impact on the way in which the Adjudicator considered, or rather did not then consider, the practicalities of the Claimant reaching those supposedly safe areas in safety. It is not necessary to hold it to be a free-standing error of law, and we do not know precisely how, if at all, any such point was taken before her. On her own analysis, members of the Ashraf would have more than one area within which they would be able to obtain protection (she seemed to have in mind Gedo and Afgoye). But if that were so, then it was necessary for the Claimant to gain access to such areas. Had the Adjudicator appreciated the real difficulties faced by Ashraf, she might well have gone on to consider that issue. We do not know what she would have concluded on the material before her. We deal later with the effect of the evidence which we have heard upon the outcome of the appeal.

17. There is a more general point which merits comment. Mr O’Connor contended that the Adjudicator also erred in failing to take into account the April 2003 CIPU Report, from which that observation about the Ashraf in Gedo had been removed and which was specific about the Benadiri being a minority clan that had been particularly targeted by majority clan militia. However, the Adjudicator made no mention of the April 2003 report and we cannot see that she had it before her. If it was not before her, she cannot be said to have erred in failing to take account of it. The fact that it had been published by the time of the determination does not impose a duty to consider it nor make it a material consideration. It is difficult enough for Adjudicators to consider the mass of material often placed in front of them, let alone to consider all that which is not. The CIPU Reports have no special status in that respect. An Adjudicator can of course state that he will look at it or other material and the parties can comment on it, but that is a matter for the Adjudicator. If relevant, the parties should draw material to the Adjudicator’s attention.

18. In dismissing the appeal despite finding that the Claimant was an Ashraf, the Adjudicator’s approach in this appeal does not accord with that set out by the Tribunal in two recent country guidance cases dealing with the position of minority clans generally - KS (Minority Clans-Bajuni-ability to speak Kibajuni) Somalia CG [2004] UKIAT 00271 - and the position of the Ashraf in particular: AM (Use of Sharif Name) (Somalia) CG [2004] UKIAT 000110, paragraph 14. However, both these cases post-date the Adjudicator’s decision and so cannot of themselves show she erred in law in her view of the facts.

19. The Adjudicator’s assessment of the Ashraf as a protected clan was also at odds with two reported cases, Ahmed Hussain [2002] UKIAT 02545 and Omar Mohamoud Tubeec [2002] 01/TH/01347. To the best of our knowledge there were no reported cases in existence taking a different view. In both, the Tribunal based its conclusion that members of the Ashraf were generally at risk, on the objective materials placed before them in those cases, including CIPU materials. Neither of these cases were brought to the Adjudicator’s attention. Had this been done, she could have had a very different starting point when coming to the assessment objective evidence before her.

20. The fact that she did not consider these cases and quite possibly was unaware of them cannot amount to an error of law. Even though by June 2003, when the Adjudicator promulgated her determination, the Tribunal had begun a new reporting system (see the joint Chief Adjudicator Practice Direction CA3 and the Tribunal Practice Direction No 10), there was still no publicly accessible electronic database of pre or post June 2003 reported Tribunal decisions. An Adjudicator was dependant on the variable researches and random or partial selections, if any, of the parties.

SS

21. The second Claimant had said she was a member of the Ashraf clan from Jilib town near Kismayo, approximately 200 km south of Mogadishu. Her family had faced attacks during the 1990s; her father was killed in May 2003 when she was detained for three days before being returned to her mother. In December 2003 she was caught again by the Hawiye and detained for three months. She managed to escape and make her way out of Somalia to the United Kingdom. The Adjudicator, however, did not find her asylum claim credible and in particular did not believe that she was an Ashraf or from any minority clan. The Adjudicator did not accept that she had suffered persecution from majority clans on account of her ethnicity and tribal affiliation. We need not set out the Adjudicator’s reasons for rejecting credibility since permission to appeal was granted solely on the issue of risk on return as a young woman. She acknowledged that the Claimant’s family may have been caught up in conflicts over the years, but considered that they had apparently prospered and that they remained in Somalia. She also acknowledged that the Claimant “as a young woman, fits within a vulnerable category, were she to be returned”. However, by reference to the Tribunal cases of J (Somalia) [2004] UKIAT 00071, she considered that “only in the most exceptional cases would general conditions amount to a breach of article 3. The fact of lawlessness, insecurity and instability did not reach the high threshold required”. In the light of this guidance she concluded that the Claimant could not succeed in her asylum claim or in her human rights claim.

22. In respect of the latter she wrote:

“I have also examined article 3 on a different basis: it was submitted that the Appellant would be at real risk as a female if returned, particularly in the context of uncertain security. She was affected by a differential impact. I do not find that general security and humanitarian conditions of themselves give rise to an article 3 claim. However, there must be real concerns about the return of a young single woman. However, it appears that she still has close family members in the country, her mother and siblings, which is a factor which in my judgement militates against the Appellant herself being risk [sic]. She would not be at real risk of treatment which would breach the high threshold for article 2 and 3.

43. I do not find that the Appellant would suffer an interference in her protected human rights because of the general security or humanitarian situation in Somalia nor because of her gender.”

23. The grounds of appeal, as elucidated by Mr Rana, contended that the Adjudicator erred in law in not considering the question of how the Claimant would be returned to Mogadishu in Somalia and then make her way south to Jilib. He cited in support the Tribunal case of SH (Return-Gedo-Burden of Proof) Somalia [2004] UKIAT 00164, which found that a woman who was a majority clan member from Gedo region was at risk on return, because she would be unable to make her way in safety from Mogadishu to the Gedo region. The other main point raised was that the Adjudicator had failed to give proper weight to the latest objective evidence on Somali before her, which included three major 2004 reports.

24. We point out that, thus expressed, that latter point is not a contention of an error of law. Old habits die hard. That form of drafting of grounds of appeal, appropriate for an error of fact and law jurisdiction, is not correct for an exclusively error of law jurisdiction. Grounds of appeal should raise errors of law and not just continue old formulae with an “error of law” prefix.

25. These grounds did not persuade us. They were based on a false premise. They depended crucially on the Adjudicator having accepted that the Claimant’s home area was as claimed by her, ie Jilib town. However, the Adjudicator made no such finding. To the contrary, she expressed her rejection of the Claimant’s evidence in general terms: at paragraph 21 she stated that she “did not find the appellant credible overall nor about the core of her claim”; at paragraph 34 she stated: “I did not find the Appellant credible about her asylum claim”; and at paragraph 39 she made reference to the Claimant’s “poor credibility”. She did not find that the Claimant was a member of a minority clan. The only matters she was prepared to accept were that (i) “she and her family were caught up in the conflict over the years”, (ii) they “apparently prospered” and (iii) “… the Appellant, as a young woman, fits within a vulnerable category, were she to be returned”. None of these matters were related to the Claimant’s geographical location. In our view, if a Claimant fails to establish core elements of her claim going to clan identity and to location, she is not entitled to have her claim considered as if she had satisfied those core elements. In our view, this Adjudicator gave sound reasons for making the findings that she did. And on her findings, the Claimant was simply a young female adult Somalia national with some family left in Somalia who apparently had some degree of wealth.

26. On Mr Rana’s principal submission, it is incumbent on an Adjudicator in the context of all Somali cases to make a finding as to a claimant’s home area. We disagree. The burden of proof lies on a claimant to make out his or her claim in material particulars. If a claimant’s evidence does not sufficiently satisfy the Adjudicator, the Adjudicator cannot make a finding on a claimant’s home area; there is no duty to make a finding regardless of the quality of the evidence. The appeal has to be decided on the basis that it is not known, because of deficiencies in the claimant’s evidence and bearing in mind who bears the burden of proof. Home area in the Somali context means not so much place of birth as place of clan origin or clan current control or location.

27. Where, however, positive findings about clan and home area can properly be made, then the prospects of safely reaching that area may become an issue, because such prospects impact on the risk of persecution or ill treatment contrary to Article 3. But that is of no assistance to Mr Rana, since no positive findings could properly be made in his Claimant’s case.

28. Nor do we see any real inconsistency between the Adjudicator’s description of the Claimant as being in a “vulnerable category” and her main conclusions. Her description of the Claimant as being in a “vulnerable category” faithfully reflected what was indicated in the reports which were before her, including the UNHCR January 2004 document in particular. But she quite properly did not equate being in a “vulnerable category” with inevitable proof that a particular Claimant would face a real risk of serious harm on return. She considered that although “there must be real concerns about the return of a young single woman”, the Claimant still had close family members in the country (her mother and siblings). This factor went in her case to reduce the level of risk she would face to one below that of a real risk.

29. In our view it was properly open to the Adjudicator to assess the evidence before her this way. She did not overlook that the background evidence identified the Claimant as falling within a vulnerable category; nor did she ignore that females on return may encounter particular risks. But she did not consider on that material that falling within these general categories alone would necessarily expose her to a real risk of ill treatment contrary to Article 3. In respect of the latter, she was entitled to place reliance on the Tribunal view in J (Somalia) [2004] UKIAT 00071, paragraph 13 that “It would only be in the most exceptional cases that general conditions would amount to a breach of article 3”. That was a conclusion to which she was entitled to come. The evidence did not necessitate the conclusion that any returnee or any female returnee from a European country would be at risk. There may be sub-categories, especially from minority clans, to whom that would apply. But it is for a claimant to provide the evidence which shows him or her to be at risk eg by being within a risk category. Where the evidence is not sufficiently sound, because it is not generally believed, the claimant fails to make out the case.

30. Accordingly, we do not find that there was any material error of law in the decision of the Adjudicator to dismiss the appeal of the second Claimant. Although we consider later the evidence about the risks faced by the general categories of returnees and lone women returnees, that assessment cannot affect the outcome of this appeal.

LA

31. The third Claimant had stated that she was an Ashraf living in Alanley, Kismayo. She and her family had been subjected to attacks mainly by Darod militia. The final incident which led to the Claimant, along with her parents and two younger sisters, fleeing Somalia via Kenya occurred in November 2003. In the course of fighting with rival Darod militia, members of the Marehan, a sub clan of the Darod had attacked their house, beating her father, killing her brother, shooting her cousin and ransacking and looting their house. When she regained consciousness during an attack, she discovered that her sister had been kidnapped.

32. The Adjudicator made an adverse credibility finding. He concluded that she was not a member of the Ashraf clan or any other minority clan. Having dismissed the asylum appeal however, he went on to consider whether the Claimant as a single girl would be at risk on return. Given that the Claimant spoke standard Somali dialect, he did not think she would be out of place in her home region. However, at paragraph 41, he concluded:

“I have considered the two most recent [2004] reports from UNHCR and from the Joint Report of 7th January. I have considered also the other background evidence here in the CIPU at 6.146 to 6.150. In considering those three recent Reports, the CIPU, the up to date Minority Report and the UNHCR Report, it seems to me that to return the appellant to Somalia as a single young female returning from a European country would not render her subject to a well founded fear of persecution for a Convention reason but would, in my opinion, subject her to a real risk of treatment contrary to the terms of Art 3 of the European Convention of Human Rights. … I am satisfied that there is a real risk of treatment contrary to Art 3”.

33. The Adjudicator made clear at paragraph 11 that he did not think, in the light of the matters relating to her credibility he had examined earlier, that she was a “genuine asylum seeker”. However, he only expressly rejected her claim to be an Ashraf or a member of any other minority clan. At paragraph 36, he did at one point state: “[b]earing in mind the area [her family] lived in…”, and at paragraph 40, it appears he was prepared to consider, at least in the context of her situation as a rejected asylum seeker, what the position would be if she had no relatives left in Somalia. On this basis he assessed that, since she spoke standard Somali dialect, she would, if returned to her home region, be seen as sufficiently Somali. Implicitly, he concluded that she is a majority clan member.

34. It is convenient to take the Claimant’s counter submissions first because they relate to what the Adjudicator actually held. Mr Ahmed sought to argue for the Claimant that the Adjudicator’s comments at paragraphs 36 and 40 amounted to an acceptance that the Claimant’s home area was Kismayo and that, therefore, it was incumbent on him to consider risk arising from the mode of return to her home area of Kismayo within Somalia. But the Adjudicator made no positive findings about the Claimant’s home area, and found her claim to be a minority clan member not to be credible. Part of his reasoning related to what he would have expected her to have known and to have experienced had she been a minority clan member from Kismayo. On the other hand, it was partly because of her assertion that she was from Kismayo that he rejected her credibility. We consider that that was no more than saying that if the Claimant said she was from Kismayo, her story was internally contradictory. It involved no finding that any part was correct.

35. As in the case of the second Claimant, so in this case also: essentially all that was accepted by the Adjudicator was that she was a young woman from a majority clan in Somalia, save perhaps for the specific acceptance that she spoke a standard Somali dialect. Accordingly, the Adjudicator’s conclusion on Article 3 proceeded simply on the basis that she was a majority clan female, being returned from a European country. The lawfulness of that conclusion on Article 3 is raised by the Secretary of State’s grounds. It is for the Claimant to show what risks, if any, she faces in those circumstances, knowing what the issues in the case are and that her case that she was a minority clan member was at issue. It is not incumbent on the Adjudicator to make findings which he properly considers that the evidence does not permit him to.

36. Even if we had accepted Mr Ahmed’s submission that the Adjudicator effectively treated the Claimant’s home area as Kismayo, it would still be for the Claimant to show what risks she faced in Somalia, and in reaching her home or other safe area from the frontier post or airport where she would arrive. (We would expect the Secretary of State to be able to provide information as to the various places of return, if other than Mogadishu.) Here, the Claimant on this hypothesis provided nothing more specific than that she was from Kismayo and, on the Adjudicator’s findings, was a majority clan member there, who had not been at risk. No specific materials seem to have been drawn to his attention to cater for the possibility that the core claim might be rejected and yet that he might find that she had a home area in Kismayo, accessing which was then said to be dangerous for the Claimant even as a member of a majority clan. The question of internal relocation might also have arisen in respect of a member of a majority clan which was located in more than one area. He was instead entitled to deal with the case on the basis upon which he did, simply looking at returning lone women from a European country.

37. Accordingly, we consider that Mr Ahmed’s submission that the Adjudicator should have allowed the appeal for an additional reason relating to the lack of any safe route of return to the Claimant’s home area must fail.

38. The Secretary of State’s grounds of appeal contended that the Adjudicator erred in law by applying an unduly speculative assessment of the risk to the Claimant on return. Having rejected her claim to be from a minority clan and noting that her claim did not involve gender-based persecution, there were no real reasons to assume she would not have the protection of a dominant clan upon return, or that she would be readily identifiable as someone having come from a European country. We repeat our earlier comments about the formulation of errors of law. There may be an error of law struggling to make itself known here and the drafter should not smother it with the language of a wider jurisdiction. In relation to the Adjudicator’s reference to the internal flight alternative at paragraph 28, it was submitted that the Adjudicator also gave no reasons for finding that the Claimant, as a majority clan Somali, could not relocate to stable areas of the country where her clan may be dominant.

39. The submissions for the Secretary of State in the third Claimant’s appeal raise this issue: did the Adjudicator err in law in allowing the Article 3 appeal simply on the basis that the Claimant was a rejected young female asylum seeker who would be returning on her own from a European country whose claim for asylum had not arisen from any gender-based persecution, who was a member of a majority clan, and whose case had no other distinctive features? He based his conclusions on the objective materials before him: at paragraph 41 he referred to the CIPU Report April 2004, the January 2004 UNHCR Position paper and the Joint Mission Report of 2004.

40. There is no analysis of the background material to which the Adjudicator referred to explain how that conclusion was derived, general as it was. In particular, it is far from clear whether the conclusion related to the general circumstances of life once returned to her majority clan area or whether it related to the difficulties at the place of return and en route to the clan area. The two aspects give rise to different considerations.

41. We set out later certain extracts from the background material which the Adjudicator had before him. It is difficult to see that a generalised conclusion about a real risk of a breach of Article 3 in an area where the majority clan lived could properly be drawn. It certainly would require clearer reasoning, because the background material shows a pattern of area-based clan protection. It would be for the Claimant to show that that was not available and she does not do so simply as a young, single female majority clan member returning from Europe.

42. This is especially so in the light of the Tribunal’s decision FG (Risk-Single Female-Clan Member-Art 3) Somalia CG [2003] 00175) designated as a guideline case in June 2004. As is clear from its keywords, FG was particularly pertinent to the specific country issue the Adjudicator was assessing, all the more so because he had dismissed the asylum appeal and made adverse credibility findings. Hence, like the Tribunal in FG, he was concerned primarily with the residual issue of whether a relatively young woman returning on her own would be at real risk. At paragraph 19 of FG, the Tribunal wrote:

“We do not feel on the evidence that the return of the appellant would expose her to a real risk of inhuman or degrading treatment. While there are cases of rape in Mogadishu, it is not established that the appellant, admittedly as a single woman, would herself be at risk given that she is a member of a sub clan of a majority clan”.

43. The Adjudicator should have addressed this case, applying it or giving legally adequate reasons as to why not. In FG, there had been a positive finding that the Claimant was from a majority sub-clan; he made a negative finding that the Claimant was not from a minority clan with the implication she was from a majority clan. The Adjudicator could perhaps have distinguished it by reference to the significant later material from early 2004, but he did not even refer to it.

44. However, in view of the explicit rejection of the asylum claim, including noting that there was no claim of gender-based persecution, and recognising the common jurisprudential threads between the two Conventions, it may be likelier that the Adjudicator had in mind the specific issue of safety at or between the point of return and the clan area, which is not an issue specifically addressed in FG, and which would also have provided a proper basis for distinguishing it.

45. We set out later extracts from the background material which the Adjudicator had before him. It does permit, but not require, that more limited conclusion. That conclusion would not be out of line with the later case of SH (Return-Gedo-Burden of Proof) [2004] UKIAT 00164, which did consider the problems of involvement in Somalia, in that case for a female majority clan member going from Mogadishu to an area of her clan’s dominance in Gedo. She had previously been assaulted on that journey.

46. It went on to conclude:

“13. During the course of the hearing, Mr Blundell volunteered to seek information from the country expert within the Home Office as to the viability of travel from Mogadishu to Gedo. Having made such enquiries as he could, he informed us that there have been returns to Mogadishu. The journey from Mogadishu to Gedo is approximately 150 miles but there is no public transport system and, as the CIPU notes, the journey is likely to be interrupted by militia checkpoints at which extortion demands will be made. Realistically, the appellant will have to be provided with money in order to enable her to complete the journey and is likely to be subjected, at least, to extortion demands by militiamen. As Mr Cox pointed out, the very fact that the appellant will have money will render her liable to extortion. Whilst we accept that this may not be in quite the same category as a person being required to fell across battle-lines in order to seek the safety of his or her own community, it appears to us that the journey is likely to be perilous. She will be accompanied by a young child. Mr Blundell accepted that it would not be particularly easy.
14. The conclusion that we have reached is that, whilst the background material establishes that the area around Gedo will provide adequate safety for this appellant, even as a single woman, there is at present no practical means enabling her to complete her journey there in adequate safety. In our judgment, under both Conventions, the provision of adequate security is essentially a practical affair. In reaching this conclusion we have avoided deciding the issue on the basis of who has the burden of establishing it. It is, of course, for the appellant to establish her claim. If the evidence suggests there are areas within the country where a particular appellant is able to find adequate protection, the assumption will be that there are means of travel to enable her to reach that destination. If, as in the case of Somalia, there is evidence that there are significant difficulties in completing the journey, the information may be sufficient to enable the appellant to discharge the burden placed upon her. Nevertheless, it will sometimes be the case that the Secretary of State has access to information that is not available to an appellant and, in such cases, it may be reasonable for the Secretary of State to provide it. In so doing, we are not suggesting that the burden shifts to the Secretary of State although the issue was not explored before us.
15. The consequences of this decision are that the appellant has succeeded in establishing that there is an insufficiency of protection for her were she to return to Somalia and that her claim under the Refugee Convention is made out. Her upgrade appeal is allowed.”

47. We have considerable doubts about the legal adequacy of the Adjudicator’s reasoning but we do not consider that the Secretary of State has made out his first ground of appeal. The determination can be sustained if the basis of his reasoning on the material before him related to safety at the point of return or en route to a safe area. We decline to hold that a material error of law has been demonstrated, reading the determination in that way.

48. On that basis, the appeal ground about internal flight falls by the wayside. Although it is a point which we consider later, the availability of internal flight depends on risk in accessing any such point.

49. As we point out later, there is an issue which goes to both of those points which Adjudicators should consider, but that new issue was not sufficiently flagged up in argument before the Adjudicator or in the background material for his conclusions to be erroneous in law for failing to deal with it.

Thus far

50. Accordingly, the appeals in the cases of the second and third Claimants are dismissed. There is no material error of law. The fresh evidence cannot affect the outcome. The asylum and human rights appeals in the case of the first Claimant are allowed, but subject to the effect of the fresh evidence which we consider.

51. We acknowledge that our decisions mean that the outcomes of the second and third cases are different, even though there is no major distinction on the facts: one had family members in Somalia, and both failed to show that they were minority clan members. In the latter, the issue of risk at the point of return and in accessing clan area was considered; in the former it had not been raised before the Adjudicator as an issue distinct from whether she was a minority clan member. The second Adjudicator did not have to consider it. The evidence on it before the second (or indeed third) Adjudicator does not permit only one conclusion on it – far from it.

52. This is not a satisfactory situation. But, although it is an error of law for the Tribunal as an appellate body to reach different conclusions on the same issue in different cases, that may not be so for the first instance tier. That position may change in the single tier.

53. The Tribunal cannot deal directly with those inconsistencies because of the restrictions on admitting evidence post Adjudicator decision which the changed jurisdiction to errors of law has been held to impose.

54. However, we can deal with certain areas by way of guidance to reduce or eliminate true inconsistencies in later cases. We turn to this in the context of dealing with the first Claimant’s appeal. We are entitled to take into account all the materials placed before us in this appeal, including the oral testimony of Professor Lewis. It is possible that some was not before the Adjudicator when it could and should have been. We make no findings as to that; we simply recognise it as a possibility. But we would have looked at it in order to avoid misunderstanding any of the later evidence or to avoid excluding material which might have a bearing on the general issue we consider.

Risk to women returning alone from the United Kingdom

55. In shorthand, the question we address is “Are such persons a current risk category?” for Refugee Convention or Article 3 purposes. We remind ourselves that we are dealing here with a country which has been the subject of a great deal of examination in the form of country reports by external observers, notwithstanding that for many observers travel there is fraught with danger and difficulties. A number of governmental and non-governmental bodies have sought over time to identify certain risk categories. That they have done so is of assistance to the Tribunal in the tasks we have to undertake.

56. The submissions we heard went beyond the contention that lone women were a risk category and embraced the broader contention that returnees generally were a risk category. In what follows, therefore, we shall consider the evidence relating to both of these canvassed risk categories. Many issues are common to both.

57. We accept that there have been several reports in 2004 and previously which have particularly highlighted the problems facing returnees, women and lone women. Thus the UNHCR Position Paper January 2004 (before the second and third Adjudicators) regarding return of rejected asylum seekers to Somalia (paragraph 5.1) states that:

“Lives continue to be threatened by violence, crime, clan feuds, lack of justice as well as poverty. Furthermore, humanitarian agencies have real problems gaining access to many areas. Militia loyal to different strongmen succeed one another in a perpetual move to establish a sustainable control of certain areas. There is a constant fear of abrupt change in clan balance shaking territorial power bases. This often leads to conflicts between clans and factions. Mines have been laid in many areas as part of current conflicts to either mark territorial control or prevent the mistreatment of people. Moreover, the lack of any effective governing administration may render it impossible for countries with rejected Somali asylum seekers to embark on any comprehensive and co-ordinated dialogue aiming at removing such cases. Consequently, UNHCR considers that persons originating from southern Somalia are in need of international protection and objects to any involuntary return of rejected asylum seekers to the area south of the town of Galkayo.”

58. This contrasts with the area north of that town, Somaliland and Puntland. In the north, returns are generally possible. There are also southern pockets of variable stability. But there was little or no authoritative government, high levels of criminality, sporadic armed conflicts, lack of economic recovery, endemic humanitarian needs, minimal health care and education and population displacement.

59. As regards women, UNHCR states at paragraph 2.1:

“Gender-based violence is prevalent, including rape, female genital mutilation and domestic violence. The cultural attitudes of traditional elders and law enforcement officials routinely result in restrictions on women’s access to justice, denial of their right to due process and their inhumane treatment in detention ….

Somali women who unsuccessfully but credibly based their claims on issues relating to gender-based persecution should not be subject to involuntary return to any part of Somalia (para 5.2 ).”

60. Although we deal later with internal relocation, it is relevant here that the context for the UNHCR’s view that internal relocation is not possible, is that protection derives from living among those with whom ethnic, tribal, religious or cultural ties are shared; it is clan-based.

61. The Joint Fact-Finding Mission 2004 Report (before the second and third Adjudicators) is to similar general effect: the situation in Mogadishu remains fluid. Although the violence that results from general clan conflict only flares up from time to time, there is no effective protection for those targeted for violence. Some recent returnees to Mogadishu have been reported to have been killed. At 5.1, it states:

“Wolken [UNHCR Somalia representative] explained that returnees are at risk of robbery, extortion at roadblocks, and attacks by militias in the areas to which they return. She added that the UNHCR is unable to monitor the progress of persons following their return as UNHCR only has a field office in Mogadishu. However, in areas where UNHCR has access some monitoring might be possible”.

62. No more than two to three returns per month had been facilitated by UNHCR to southern or central Somalia. The January UNHCR Paper recognises limited circumstances in which individuals can repatriate voluntarily to the south.

63. At paragraph 5.2, it cites Wolken as further stating that:

“Any Somali who returns to Somalia from abroad would be perceived as having some resources (cash or other). This will be the case both for persons returned by force and for Somalis with residence abroad who visit Somalia independently. As a result of this perception among Somalis within Somalia, the report states, a person in this category will be at a greater risk of being robbed, extorted or attacked by militia than persons permanently residing in Somalia”.

64. As regards women, the report notes at 4.7 under the heading “Minority groups” that:

“Regarding the situation of vulnerable groups in Somalia the CAP states ‘In both the CAP Workshop for 2003 (August 2002) and 2004 (August 2003), as well as in numerous other reports, aid actors in Somalia have reaffirmed the three most vulnerable groups in Somalia to be IDPs, returnees and minorities. While many other categories of vulnerability have been identified, these groups, which include women and children, qualify as the “most vulnerable of the vulnerable, ‘primarily due to having suffered from: 1) the loss of assets through exposure to major shock, whether it be economic, climactic or conflict-related; 2) having little or no access to protection from clan affiliations, and 3) being exposed to multiple vulnerabilities or risks’”.

65. At paragraph 4.9. the report observes that that:

“According to CAP, gender-based violence is also prevalent, including rape, female genital mutilation and domestic violence. …”

66. At 5.2.1, headed “Return of young persons, particularly females”, the report notes that:

“Wolken indicated that young Somalis returning from abroad (particularly western countries, but also neighbouring countries such as Kenya) are vulnerable to physical abuse, and are viewed with suspicion by their relatives and local communities. She referred specifically to young females who are at risk of rape and FGM. It was suggested that thousands of young girls are at risk of being outcast in this way.”

67. The Netherlands Ministry of Foreign Affairs report of November 2004 relies at paragraph 4.3 for what it says about returnees on the Joint Mission Report. It summarises the latter thus:

“Somalians returning to Somalia meet with no hindrance from the local authorities on arrival. However, in the relatively unsafe areas, passengers are sometimes waylaid en route from the airport by militias or criminals who steal all their belongings, often resorting to extreme violence. Somalian emigrants who travel to relatively unsafe areas also run a greater risk of being kidnapped, since criminals expect them to have fairly wealthy relatives abroad.”

68. Its section on women at paragraph 3.4.3 highlights that in southern Somalia in particular, “[m]istreatment and rape of women … occur regularly in this region, mainly committed by militia members”. However, it also observed that:

“Since the outbreak of the civil war Somalia has had a large number of single women. These are women who have either been divorced (or abandoned) or whose husband has died or left to seek work elsewhere. As a consequence of the civil war the number of female-headed families has risen sharply. For example, a recent survey by UNICEF shows that the percentage of such families in Galkayo rose from 10% to 54% between 1990 and 2004. This percentage is substantially higher in southern Somalia. As explained below, single women can generally rely on their family and clan for protection. However, in socio-economic terms female-headed households are very vulnerable. The children of such families are often malnourished.

69. Commenting on evidence concerning rape in Galkayo, it notes that:

“Rape occurs fairly regularly in Galkayo, whereas it was virtually non-existent before the civil war broke out. Women of minority groups or displaced women tend to be the victims, particularly since the perpetrators then has much less to fear from any claims for compensation from the victim’s family and in southern Somalia, where an entire generation has grown up during a civil war, some of the young men have never learned the traditional standards and values. Mistreatment and rape of women therefore occur regularly in this region, mainly committed by militia members.”

70. It also suggests in paragraph 2.3.3 that the need for someone to live within the area of clan protection may have decreased, particularly in the safe areas, but in principle within the clan area, a person is protected against violence from other clans. But in relatively unsafe areas, there may be general safety fears arising out of conflicts with other clans.

71. The latest October 2004 CIPU report cites the reference in the January 2004 UNHCR paper to human rights violations remaining endemic and kidnappings in Mogadishu having reached such alarming proportions that the public took to the streets in protest. At paragraph 6.124, the report summarised the security situation 2003-2004 as follows:

“As reflected in the [joint mission 2004 report] UN sources suggested that the fluid security situation and general trend in extra-judicial killings in the southern and central regions remained unchanged during 2003, a trend that has been constant since 1999. The source explained that this situation was caused by the time that had elapsed and because the culture of violence and weapons, and disrespect for life have become more prevalent in Somalia. It was added that the security situation in Somalia is being continuously monitored and that the overall level of violence in 2003 was high. Incidents of kidnappings and looting have increased, as many people looked to increase their resource base. The weaker clans and the minority groups were now worse off. This increase in violence and the deterioration of security in Somalia has affected not only Somali civilians, but also local UN staff”.

72. It its sections on women, it highlighted the US State Department Report assessment that violence against women in Somalia was widespread: robbery and rape were particularly common (see in particular 6.96).

73. Furthermore, insofar as this and the preceding April 2004 CIPU report highlights lack of protection as a problem for women, (particularly in the context of rape and domestic violence), it is primarily in respect of three sub-categories expressed in the April report as follows:

“Most vulnerable have been women who have been internally displaced within Somalia, who have lacked the protection of powerful clan structures, and those from minority clans and ethnic minorities.”

74. At the hearing, we heard evidence from Professor Lewis. In his written report dated 21 October 2004, he had been asked to comment on the situation of the first Claimant on the basis that she was an Ashraf from Mogadishu. We quote the last four paragraphs of this report:

“… A new provisional president has been elected for Somalia, but the election has taken place in Kenya where the ‘peace conference’ which appointed him has been meeting for two years since Somalia was judged to be too hazardous for these negotiations. The person chosen belongs to the same clan-family (Darod) as the previous dictator Mohamed Siyad Barre, who was overthrown in 1990/91 and his appointment has already been opposed by most of the warlords in Mogadishu who belong to the Hawiye clan-family. We are thus entering on a new period of uncertainty and turmoil in Somalia generally, and in Mogadishu particularly, where anything could happen and there has already been an upsurge of street violence with assassinations and kidnapping.

The people most endangered in these circumstances are always members of the minority groups such as the Ashraf, and refugees who return from this country are always particularly attractive targets since they are assumed to be (relatively) wealthy. In these circumstances a forcibly returned unprotected woman with, or without, small children is always especially vulnerable to robbery and sexual attack. The situation of homeless people worsened in 2003 when, in the course of ‘anti-terrorist’ measures, the US State Department froze the Middle Eastern accounts of the Saudi NGO Al-Haramayn which had opened centres for homeless people and orphans in Mogadishu. Over three thousands ‘orphans’ were thrown onto the streets.

You also ask about the IDP camps round Mogadishu. These have a very bad reputation as offering only irregular support and being extremely insecure. The most recent intergovernmental report on human rights (dated 2004) on the camp situation is not reassuring. This reports that ‘there is no control in these camps and militia members enter the camps to rape and kill with impunity. The local community steal and loot any assistance that is given to the IDPs (Human Rights and security in central and southern Somalia: Joint Danish, Finnish, Norwegian and British fact-finding mission to Nairobi Kenya, March 2004, p 42).”

In its position paper (Position on the Return of Rejected Seekers-seekers to Somalia, Geneva, January 2004, p 9), ‘UNHCR considers that persons originating from southern Somalia are in need of international protection and objects to any involuntary return of rejected asylum seekers to the area south of Galkayo. Mogadishu represents the worse case of this general southern Somali situation, and Amnesty International has recently reported cases of returned asylum-seekers who have actually been murdered in the course of street robberies in Mogadishu’.”

75. In oral evidence, Professor Lewis explained that despite not having visited the country since 1992 he was able to keep abreast of Somali affairs through reading academic and non-academic reports, relevant websites, his discussions with FCO staff and a number of personal contacts inside and outside Somalia. The telephone system from Mogadishu was remarkably good. He spoke to people who went in and out of Somalia.

76. He said that events since he wrote his report suggested that the prospects for the new provisional government actually being able to move from Nairobi to Somalia and govern were not good. Although the new provisional government contains most of the major warlords, including those from Mogadishu, the latter are resisting proposals for foreign troops from the African Union to come and maintain security. He saw no prospect for any real improvement for some two to four years.

77. As regards returns by air to Somalia, there were current difficulties with UN-sponsored flights because the company it used called Echo had gone bankrupt, and except in Somaliland and Puntland, most airports or airstrips - and certainly those in southern Somalia - were under the control of local militias who regard flights carrying passengers from the West as potential targets for extortion and/or ill treatment. There were documented cases of returnees who had been murdered because of their (perceived) wealth. Clan militias were interested in kidnappings, sometimes to obtain ransoms, sometimes for sexual gratification and sometimes to conscript victims into forced labour on nearby farms under their control.

78. In Somalia it was virtually impossible for a person to hide their real clan identity. Sometimes, as in the case of many Ashraf, there would be visible signs such as lighter skin. Also, in general, militia interrogators would be able to establish easily whether a person was a member of their clan or of a different clan: those at checkpoints or roadblocks could be expected to have become familiar with the genealogies of other clans. In Somalia genealogy, traced through an extremely patriarchal line, is a statement of political identity, the key which unlocks solidarity, something analogous to an identity card. It is not a family tree in a western sense; after two or three generations, the genealogy which each individual knows becomes the common tribal or clan ancestry, knowledge of which shows membership of the tribe or clan.

79. Asked if a single woman would be at serious risk on return, he said that it would depend on whether she was a member of a clan with its own militia, in which case she could be escorted. Young women not under clan protection were regarded as fair game for sexual assault. Escort protection, however, would not eliminate risk; Mogadishu, for example, was a gangland criss-crossed by clan loyalties. The Hawiye clan was the dominant clan there with two main sub clans predominating, the Habergidi and the Abgal. Militia roadblocks of varying clan and sub-clan composition manned all routes in and around the city. The volatility of the situation was made worse by the fact that young militiamen would sometimes be under the influence of qat, a drug with an effect similar to Benzedrine, and increasingly imported from Ethiopia and Kenya.

80. Professor Lewis said, however, that it was reasonable to assume that members of majority clans would be able to obtain militia protection which would somewhat reduce the level of risk. It was not essential for the effectiveness of militia escort protection that those encountered at checkpoints be from the same majority clan. A person being escorted might have to add to or change the militia escort to accommodate different checkpoints. The bigger majority clans had their own helicopters. Other clan militias manning checkpoints would generally consider it unwise to attack or rob a person under escort by another majority clan militia because they would know there could be gangland-style reprisals, but sometimes such caution was ignored or mistakes happened. In general, members of minority clans, including the Ashraf, did not have their own militias and so would face great perils. However, some minority clans or minority clan individuals might have protection from a patron majority clan or individual. The absence of a militia was a significant characteristic of a minority clan.

81. The official international airport in Mogadishu was not currently operational. Whilst Mogadishu was the most dangerous area of southern Somalia currently, he accepted that someone who had to return, via an airport or airfield near Mogadishu, to Jilib would encounter the same type of problems: it would not be feasible unless the person was, or had a patron, from a majority group.

82. Kismayo was another southern Somalia trouble-spot, with the upper hand in the power struggle shifting between two or three sub-clans of the Darod. The Marehan were currently in control, but things were unstable. Similar problems as regards any travel in and around Kismayo applied as in Mogadishu. There were planes flying into Kismayo, which has a huge airstrip. But returns into Kismayo would also be very risky unless one had arranged a majority clan militia escort.

83. There was an Ashraf enclave in Gedo but they were not protected by any patron majority clan. There was nothing special about Gedo as a place for Ashraf, as members of this clan were spread all over Somalia. Professor Lewis considered the position for Ashraf in Gedo had been the same in June 2003 as it was now.

84. Asked about returns to Somalia direct into Somaliland, he said that whilst their regional administrations would accept back former Somaliland residents or persons from clans originating from Somaliland, they would not accept back outsiders. The Puntland administration would possibly accept outsiders, particularly young single males, in view of their current enthusiasm for migrant labour. That acceptance would be irrespective of clan identity. Once again, however, having fellow clansmen would help.

85. The Professor reiterated points he made in his written report about Internally Displaced Persons (IDP) camps. If a person were forced to live in one of these camps, they would face an utterly insecure, destitute and menaced existence.

86. Dr Luling , in a letter of 24 October 2004, referred to the unchanging security problems in Mogadishu and the perpetual problems faced by Ashraf and by those returned from the United Kingdom, who as such, are assumed to be wealthy. They are at risk if “unprotected”, from robbery and sexual attack. The IDP Camps around Mogadishu were very insecure.

87. In a letter dated 13 January 2005, written in connection with another case, Dr Luling relied on the JMR to highlight the dangers to women in Mogadishu for that same reason. “It is therefore essential that she has, arranged in advance, relatives near or distant who will protect her from the airport on. A young woman without a husband or family to protect her would be vulnerable to sexual assault and robbery in any area of Somalia, and she would find it difficult to make a living.”

88. Professor Lewis stated that in general he regarded Dr Luling as having an excellent knowledge of Somalia and he considered that her report was accurate. Asked about her comments that women returnees would be at particular risk unless they arranged through family of fellow clan members to be met by militia escorts, he said that family members would regard themselves as under a strong obligation to assist. Those who shared only a clan connection might feel a general albeit not necessarily strong obligation to assist, but might well expect financial payment for escort services.

89. Questioned about the reliance placed in the Joint Mission Report 2004 on the views of Simone Wolken, Professor Lewis said he considered those to be generally sensible and correct, but he sounded a general note of caution about many of the reports on Somalia in the public realm. Their authors were sometimes people who did not know the country, did not speak Somali and had little or no training in, or understanding of, its social and political structure and no real means of testing their hypotheses.

90. Like the Tribunal in AJH (Minority group-Swahili speakers) Somalia CG [2003] UKIAT 00094, we found Professor Lewis an impressive witness who had great command of his subject of expertise. He was able to deal objectively with a considerable number of questions on a wide range of matters. He was able to bring to bear his wealth of knowledge in a helpful way to issues raised by all parties and the Tribunal. We accept his evidence.

91. Turning to internal relocation, we note the view expressed in some of the background materials that the concept of internal relocation has no application whatsoever in the Somalia context. Among those taking this view is Simone Wolken, who is reported at paragraph 5.3 of the joint mission report 2004 as stating that “the Internal Flight Alternative (IFA) was not a viable alternative in Somalia. In addition to the fluid security situation, she cited the adverse impact such a policy would have on the already difficult IDP situation”. The UNHCR January 2004 Position Paper, which represents UNHCR’s considered position, states at the conclusion of paragraph 4.2 (headed “Internal Flight Alternative”) that “In light of the above, especially given the prevailing clan system, UNHCR is of the view that the internal flight alternative is not applicable in the context of Somalia”.

92. However, in the body of the text to paragraph 4.2 it is stated:

“The general pattern of human settlements in many parts of Africa, including Somalia, is often characterised by common ethnic, tribal, religious and or/cultural factors, which enable access to land, resources and protection from members of the community. Consequently, this commonality appears to be the necessary condition to live in safety. In such situations, it would not be reasonable to expect someone to take up residence in an area or community where persons with a different ethnic, tribal, religious and/or cultural background are settled, or where they would otherwise be considered as aliens.

The only conceivable alternative could be to move to the slums of a big city, where internal migrants from the countryside lead a precarious existence, often in appalling living conditions. Persons with a rural background may be rendered destitute there and thus be subjected to undue hardship. Therefore, it would be unreasonable to expect a person to move to an areas (sic) in his or her own country other than one where he or she has ethnic, tribal, religious and /or cultural ties [emphasis added].”

93. The further paragraphs on IFA emphasise that in the Somalia context “place of origin” should not necessarily be equated with “place of birth” and that “the determining factor in defining where a person originates from is where the person has effective clan and family ties, and where clan protection is thus available” (emphasis added). They also deal in discrete terms with the specific situation in Somaliland and Puntland.

94. We shall not summarise the submissions of the parties, since we address all the important points each raised in the course of what we say below. However, we would like to thank all of them for the care they took in addressing the important issues raised by these appeals.

Discussion

95. Neither Professor Lewis nor Dr Luling sought to equate their own vocabulary of risk and danger with the words contained in the legal tests that have to be applied by the courts and the Tribunal in asylum and asylum related appeals. That in our view is entirely proper. It is not the function of country experts to seek to assess what does or does not breach the Refugee or the Human Rights Convention. Irrespective of the vocabulary in which country experts express their opinion, it remains for judicial decision whether their opinion evidences the existence of a real risk of persecution or of ill treatment within the meaning of the Refugee Convention and Article 3.

96. Partly because of the different nuances to be found in the major sources of objective evidence, we regard it as important to consider the two issues of risks to returnees and risk to lone women returnees in the context set out by Professor Lewis and Dr Luling in their reports written for this hearing. Both experts, each of whom has a close familiarity with the most recent background materials relating to Somalia, seemed to us to agree that, whilst there are significant dangers for returnees and lone women returnees in particular, these can be significantly reduced in certain cases: those who, as majority clan members, can avail themselves of the protection of a majority clan, or as a minority, the protection of a clan patron, and also those who will be accepted back into Somaliland and Puntland. The former two groups may be able to arrange in advance for militia protection from the airport onwards, through close relatives or fellow clan members. The latter group may not need to do so if returned directly to Somaliland or Puntland.

97. We do not seek to suggest that all of Professor Lewis’ formulations when giving evidence showed that majority clan protection of this type was always available or adequate. He made very plain throughout that he thought Somali society generally was in a parlous state. But he was asked numerous direct questions on the issue of overall risk to returnees, lone women returnees in particular and was quite adamant in reply that majority clan protection of this type made a significant and material difference to the level of risk. Dr Luling’s report likewise indicated that the existence of majority clan militia protection made an important difference.

98. Professor Lewis emphasised that for persons with close family members in Somalia the latter would feel under a strong duty to take steps to ensure a safe reception and onward travel. For those here who would have less close links with fellow clan members, payment may be required, but we do not understand from anything we have read that the amounts involved would be prohibitive. Allied to this, we note that although both Professor Lewis and Dr Luling mention examples of returnees, male and female, who have fallen foul of banditry by clan militias on return, neither they nor any of the other reports before us sufficiently evidence that such incidents are occurring routinely where militia protection is provided.

99. We considered whether we should attach any defining significance to whether female returnees were young or not young. The grounds of appeal in the cases before us highlighted risks facing “young” or “younger” women. From the evidence as given by Professor Lewis and as contained in the background materials, we accept that younger women would be particularly prey to militia violence and rape attacks. We accept that for some purposes it may be valid to demarcate young women as distinct from women generally. However, we do not think that, in the asylum related context, it necessarily helps to draw a sharp distinction between categories of women based on age. Whilst, for example, older Somali women may not be so immediately at risk of sexual attack, their age or relative frailty might make them more physically unable to avoid other (equally serious) types of harm. Differences of age, like differences concerning health, knowledge of Somali dialects etc, are best left for consideration and weighing up in the context of any particular case.

100. We reach a similar conclusion in relation to divorced women (the first Claimant was accepted as such) and widows. At first sight, it might seem that women in both these categories would lack protection by definition. However, we note that the multi-sourced November 2004 report of the Netherlands Ministry of Foreign Affairs states at paragraph 3.43 that “A divorced Somali woman cannot generally rely on the protection of her former husband’s clan. However, she can in principle rely on her own clan and clan family.” In the same section the report states that “A Somali widow can generally rely on the protection of both the family of her deceased husband and of her own family”. Thus having the status of a divorcee or widow does not necessarily prevent a woman from being able to secure protection.

101. Professor Lewis also states, and what he says is confirmed by the reports before us, that persons (male or female) returning directly to Somaliland and Puntland, albeit they might still face difficulties, would not face anything like the same level of hostility and risk. Protection would be generally available. However, the administrations of these two regions would in general only accept back persons who were former residents of those regions or who were members of locally based clans or sub clans. The Netherlands Ministry of Foreign Affairs report of November 2004 notes at paragraph 4.6 that UNHCR is encouraging the return of Somalis originating from Somaliland and Puntland “‘Originating from’ is interpreted here to mean ‘having previously lived there for some time (more than a year)’”. We stress here, as does the January 2004 UNHR paper, that even in respect of persons originating from Somaliland or Puntland, it may still be that in the particular circumstances of their case a claim to be at real risk of persecution or ill treatment can be made out.

102. These appeals do not raise specifically the discrete question of the safety for persons in IDP camps. However, we would observe in passing that, on the strength of the background evidence and the oral evidence of Professor Lewis, we would consider any person at real risk on return of being compelled to live in one of these camps as having little difficulty in making out a claim under Article 3, if not under the Refugee Convention also.

103. The UNHCR consideration of internal flight is relevant to the question of the availability of protection. Notwithstanding the seeming width of its conclusion about the unavailability of internal flight, it is clear that it accepts that where a clan is majority located or dominant, it can afford protection. That follows from the contention that elsewhere a majority clan member is not likely to be protected.

104. We note the view taken by the Tribunal in SH [2004] 00164, that the January 2004 UNHCR analysis (as opposed to its stated conclusions) does not bear out the general unavailability of an internal relocation alternative. Their own analysis is in fact very similar to that set out in the Home Office Operational Guidance Note Somalia V6 May 2004 at paragraph 3.6.3, “Most majority clan members should be able to reside in an area in which their clan dominates”. This may not be where the individual originated. We note that it is also the logic of Professor Lewis’ position, as outlined to us in his oral evidence, that internal relocation is in principle available for members of clans which have militia protection and some degree of control over areas in which they reside.

105. We would accept that as regards internal relocation to Somaliland and Puntland, the most recent objective evidence continues to confirm the view taken by the Tribunal in AJH (Minority group-Swahili speakers) Somalia CG [2003] UKIAT 00094 paras 41 and 58, namely that it is only a viable option for those formerly resident or having clan connections in these areas. Once again, that also seems to be the position taken in the January 2004 UNHCR report in the paragraphs which look in substance at the internal relocation situation as regards returnees to northern Somalia.

106. But we would not rule out, in view of Professor Lewis’ oral evidence, that young adult Somali males from southern Somalia may currently be able to relocate to Puntland, but we would need to have more evidence than was before us as to whether, in the context of any direct return of young adult male rejected asylum seekers to Puntland, the current Puntland administration would consider them as prospective migrant labour. That is the type of issue on which it would be reasonable to expect a Home Office input.

107. Internal flight is excluded where majority clan protection is not available or cannot be accessed.

108. The extensive reliance upon UNHCR material makes a few observations germane. The value of the UNHCR material is first that where it has observers on the ground, it is in a good position to provide first hand information as to what in fact is happening. The process then whereby its observations of what is happening become position papers or recommendations is likely to increase the objectivity and soundness of its observations in that respect. It has a special role in relation to the Geneva Convention. It may also well be able to offer Governments advice on the practical implications of the forced or mass return of people who are not refugees; these implications may include infrastructure, economic conditions, resettlement facilities and absorption capacity; a slower rate of return may make the local government’s task or the UNHCR task as a reception body that much easier to perform well.

109. But their comments have their limitations and these need equally to be understood. The UNHCR often speaks of inhibitions on the return, usually forced, of failed asylum seekers, who have been rejected after a proper consideration of their claims. It follows that the UNHCR is not then commenting on the return of refugees at all; it is acknowledging that they would not face persecution for a Convention reason and it is going beyond its special remit under the Geneva Convention. This is not a question of picking up on loose language. The UNHCR is perfectly capable of using language which shows that it is or is not dealing with the risk of persecution for a Convention reason, and sometimes does so. These are considered papers after all.

110. This is illustrated by UNHCR position papers, such as the January 2004 one dealing with Somalia, where UNHCR has responsibility for voluntary repatriation programmes, currently confined to northern Somalia, and has evident consequential concerns referred to in paragraph 3 of this report about “over-stretched absorption capacity” even in the relatively stable northern part of Somalia. Reasons of this kind lead UNHCR to discourage signatory states from going ahead with enforced returns of rejected asylum seekers. However, the only issue arising on statutory appeals on asylum or asylum-related grounds before Adjudicators and the Tribunal is whether the claimant is a refugee and if so, whether to return a person to Somalia would breach the Geneva Convention or constitute treatment contrary to Article 3 ECHR or any other Article, where engaged. The question of absorption problems that might flow from any United Kingdom government decision to enforce returns in numbers is not of itself the basis for showing that return would breach either Convention.

111. The UNHCR, in such circumstances and they arise very frequently, is pursuing what it sees as its wider remit in respect of humanitarian and related practical considerations for the return of people, particularly on a large scale. This is a common problem where the country of refuge borders the country of past persecution or strife. What it has to say about the practical problems on the ground will be important where it has staff on the ground or familiar with the conditions which a returnee would face.

112. But the assessment of whether someone can be returned in those circumstances is one which has to be treated with real care, if it is sought to apply it to non Refugee Convention international obligations, especially ECHR. The measure which the UNHCR uses is unclear; indeed, realistically, it may be using no particular measure. Instead, it is using its own language to convey its own sense of the severity of the problem, the degree of risk faced and the quality of the evidence which it has to underpin its assessment. It is often guarded and cautious rather than assertive because of the frailties of its knowledge and the variability of the circumstances.

113. This is not to advocate an unduly nuanced reading of its material, let alone an unduly legalistic reading. It is to require that the material be read for what it actually conveys about the level of risk, of what treatment and of what severity and with what certainty as to the available evidence. But there may be times when a lack of information or evidence permits or requires inferences to be drawn as to its significance, which is for the decision-maker to draw. There is often other relevant material as well.

114. UNHCR’s language is not framed by reference to the ECHR and to the high threshold of Article 3 as elaborated in the jurisprudence of the Strasbourg Court and of the United Kingdom. That is not a criticism – it is not an expert legal adviser to the United Kingdom courts and couches its papers in its own language. So its more general humanitarian assessments of international protection needs should to be read with care, so as to avoid giving them an authority in relation to the United Kingdom’s obligations under the ECHR which they do not claim. They may give part of the picture, but the language and threshold of their assessments show that the UNHCR quite often adopts a standard which is not that of the United Kingdom’s ECHR obligations.

115. UNHCR papers are often not the only ones which Adjudicators or the Tribunal has to consider. Other organisations may have first-hand sources and differ from UNHCR; experts may bring a further perspective. A considered UNHCR paper is therefore entitled to weight but may well not be decisive.

Principal Conclusions

116. We have given particular weight to the evidence of Professor Lewis and Dr Luling. What they said is consistent with the picture emerging from the 2004 materials both UNHCR and the JMR, which was strongly influenced by UNHCR. Their evidence is significant for its development of a particular point, practicality of safe movement and the potential availability of majority clan militia escort, which is foreshadowed in certain parts of the background but not brought out as clearly as they brought it out.

117. The starting point is that male and female members of minority clans from the south will, in general, be at risk of breaches of their Article 3 rights, and will be refugees, in the absence of evidence that they have a clan or personal patron and the means to access that area of safety without a real risk. Were such evidence to exist, which at present would be unusual, their return would involve no breach of either Convention. We recognise that there may be minority clans who are, at least locally, integrated with majority clans, and other groups who may not be a minority clan at all, being closer to a caste. Those will require specific consideration. We also recognise that a division between minority and majority does not represent a bright line on one or other side of which every clan must fall, because there are some which could be considered to be intermediate. But those issues do not arise here.

118. Those issues should be addressed where the evidence permits. There is obviously a greater risk for lone females both in the place of safety and in access, both in terms of degree of risk of occurrence and degree of severity of ill-treatment. Their position would call for particular care.

119. However, where the claimant, male or female, from southern Somalia, is not found to be a minority clan member or equivalent equally at risk, different considerations apply. First, there is likely to be a location in southern Somalia in which the majority clan is able to afford protection sufficiently for neither Convention to apply. It is important not to over-generalise; individual factors and locations will be relevant, as will the past history and individual or family connections. Likewise, lone females will be at a greater risk than males but they will not be able to show that, simply as lone female returnees from the United Kingdom, they have no place of clan majority safety.

120. Second, the question of risk in accessing any such safe place will arise, the more strongly for females than males. We accept that, where positive findings have been made as to what is the home area of a Claimant, the prospects of being able to travel safely within Somalia to that area (or if that is unsafe, to an alternative area) is a crucial issue, certainly in cases involving southern Somalia. It will be relevant to the issue of return to a person’s home area or, where appropriate, relocation to another area. That is because of the fact that many of the main road routes in this portion of the country have military checkpoints or roadblocks. In this context, the issue as to how claimants will get from the point of arrival to their home area or to an area where they have clan connections, is a real one.

121. Adjudicators in the context of Somali appeals therefore need to make careful findings concerning internal safety of travel to the extent the evidence permits. That is because the evidence shows that, except in the north, normal assumptions about travel being relatively safe and secure cannot be made. If the point of return is the airport near Mogadishu or somewhere else in southern Somalia, then there will also be an issue of whether the claimant will be able to negotiate safely the clan militia in control of that airport.

122. A majority clan can be characterised as one which has its own militia. The strongly clan and family based nature of Somali society makes it reasonably likely, though not certain, that a militia escort could sufficiently protect a returnee from Mogadishu through the roadblocks and en route banditry, to the clan home area. This would have to be pre-arranged. Any unwillingness on the part of a claimant to make such arrangements is irrelevant. The telephone connections to Mogadishu are good. We do not know anything of their availability to other towns. The mere unannounced deposit, even of a majority clan member, and especially a female, at Mogadishu airport would be likely to put them at a real risk, in the absence of special factors.

123. There are problems with those whose case has been so disbelieved that it is not known what their clan or place of origin is. It is difficult to see that such a person could succeed; he or she would be a majority clan member who was in effect declining to demonstrate, even to the low standard of proof that they were at risk on return because unable to arrange for clan militia escorts from Mogadishu or wherever else they might be returned to.

124. This evolution of thinking and guidance from FG and SH, through to the latest evidence and these conclusions, illustrates the inevitable and proper way in which guidance evolves, responds to and helps unearth the issues relevant to many cases.

125. We do not accept that the general conditions of life or circumstances in Somalia engage the obligations of the Refugee Convention for all returnees or all female returnees, in the light of Adan [1997] IWLR 1107, [1998] Imm AR 338. A “differential impact” has to be shown. We have recognised the scope for differential impacts in our analysis above. Being a single woman returnee is not of itself a sufficient differentiator, although the risks they face are greater and call for careful individualised consideration on the material which is accepted. Nor do we consider that those general conditions or circumstances engage Article 3, without more, again as we have discussed.

126. Returnees or lone women returnees claiming protection under the Refugee Convention or under the Human Rights Convention who are found to be former residents of Somaliland or Puntland or persons having a connection with a clan or sub clan based in either of these regions, would not in general face a real risk of serious harm, whether or not they could arrange in advance for clan militia protection to meet them at the airport and escort them thereafter, provided that they were returned directly to those areas and not via Mogadishu. If they were to be returned via Mogadishu, we do not know whether a majority clan militia escort could be arranged for them.

127. The same may well apply in the case of returnees or lone women returnees returned directly to the Bay and Bakool region. We did not hear submissions on this issue, but in the light of references in the reports before us to the dominance in that region of various sub clans of the Rahanweyne, it may be that access by air into that region for persons formerly resident or having local clan connections there, might give rise to a similar outcome, with the same reservations about return via Mogadishu.

128. Internal relocation is not in general a viable option for members of minority clans except where they may be able to obtain majority clan protection in a secure area. In respect of majority clan members, this may be a viable option for those whose majority clans have a secure location elsewhere within southern Somalia than where the claimant came from, if the home area were not or had ceased to be one where the majority clan was sufficiently strong to provide protection. Here, however, there would need to be an assessment of whether clan militia escort protection could be obtained. As regards the question of whether returnees could relocate to Somaliland or Puntland (or the Bay and Bakool regions), we have affirmed that the findings made in AJH remain valid, subject to a possible addition in relation to young men returning to Puntland.

129. For reasons given above, this decision is to be taken as superseding, in respect of the issues of risk to returnees generally and risk to lone women, the following reported or Country Guideline cases: Ahmed Hussain [2002] UKIAT 02545, Omar Mohamoud Tubeec [2002] 01/TH/01347, FB (Risk-Class-Midgan) Somalia CG [2002] UKIAT 06753, AH (Midgan-Disabled-Relocation-Mogadishu) Somalia CG [2002] UKIAT 07343, NG (Risk-Female-Eyle-Internal Displacement) [2003] UKIAT 00011 and SH (Return–Gedo-Burden of Proof) Somalia [2004] UKIAT 00164. It also modifies what is said in AJH (Minority group-Swahili speakers) Somalia CG [2003] UKIAT 00094.

130. For the above reasons we have arrived at the following decisions.

First Claimant

131. We considered that the determination of the Adjudicator who dealt with the first Claimant was legally flawed. We have taken account of the recent materials placed before us and in particular the oral evidence we heard. Professor Lewis’ evidence made clear that the Ashraf were a minority clan which was especially vulnerable to targeting by majority clan militias and that for members of this clan there would be three particular problems afflicting any travel within Somalia. Firstly, most Ashraf could be picked out by their appearance, being relatively light-skinned. Secondly, the Ashraf had no clan militia and so would be particularly at risk from militias manning checkpoints both at any airport in southern Somalia they might land at and along any route they might take by land to the Hamar Wayne area of Mogadishu or to any other part of southern Somalia such as Gedo or Afgoye. Thirdly, lack of clan militia meant that there was no area of southern Somalia which would be a safe destination for Ashraf, including Gedo. The latter region had been unsafe for Ashraf for at least several years. This is in line with what the Tribunal has routinely held.

132. For those reasons, this Claimant’s appeal is allowed outright. There is no evidence that she had any majority clan patronage.

Second Claimant

133. We did not find the determination of the Adjudicator in the case of the second Claimant to contain a material error of law. We therefore dismissed her appeal. The new material would not have led to a different outcome, if no finding as to the clan location could be made.

Third Claimant

134. There were no material errors of law in the determination of the Adjudicator in respect of the third Claimant. We concluded that the appeal of the Secretary of State should be dismissed. The new material could have led to a less favourable outcome to the Claimant.

Country Guidance

135. This is the last Country Guidance case upon which the final President of the IAT will sit. It is appropriate for some observations therefore to be made about these cases for the future, particularly in the light of the conflicting decisions in the second and third appeals.

136. It is evident that many asylum and human rights cases give rise repeatedly to similar issues, in particular those which relate to conditions in the country of origin. It is self-evident that it is unjust for a judicial Tribunal to treat similar cases differently where there is no differentiating feature; that is the more so at the appellate level because of the uncertainty which that creates for the first instance level. Indeed, the Court of Appeal held in Shirazi [2003] EWCA Civ 1562, paragraphs 29 and 31, concluded that the Tribunal had erred in law in where it had promulgated a series of inconsistent decisions on the risk of return which was commonly faced by asylum claimants. Such a pattern of inconsistent decision-making could involve an error of law at Adjudicator level, and is the more likely to do so in a single tier body.

137. The prospects and injustices of such inconsistencies are compounded by a number of factors: the fairly recent rapid growth in the number of cases at both levels, and in the number of judiciary; the differences between the evidence which different claimants may adduce to support the same point, some distinctly fuller and more recent than others; the Home Office Presenting Officers may only rely on the CIPU Reports and not be present at Adjudicator level so as to provide a critique of other material, and individuals may be inadequately represented if at all; representatives could find the task of distilling the key cases from the mass of decisions formidable or dispiriting and there was a marked but now reducing tendency to recycle favourite quotes and cases, whether representative, authoritative, or recent or whether possessed of none of those qualities. Nor could it be right for the jurisprudence of the Tribunal to be variable or haphazard according to the choice, partiality or thoroughness of the parties before it. Nor should the parties’ selections of cases dictate its jurisprudence.

138. The Court of Appeal in addition to pointing out the error of law involved in inconsistent decision in this jurisdiction, has also said that one of the Tribunal’s tasks is to give guidance on such commonly occurring matters, with a view to avoiding such inconsistency, see eg Manzeke v SSHD [1997] Imm AR 524, cited in DK (Croatia) [2003] UKIAT 00153. It has made the same point more recently.

139. Decisions of the Tribunal to that end had been made for a number of years. They were to be applied by the Tribunal itself and by Adjudicators unless there was good reason, explicitly stated, for not doing so. Failure to adopt that approach was an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given. The inconsistency itself with authoritative cases would be regarded by higher authority than the Tribunal as an error of law. There was a need to formalise that system so that parties knew where they stood, at least as the starting point for consideration of their circumstances, and for the Tribunal itself to bring forward those decisions which it had made, which it thought were representative and useful still, as a guide to country conditions.

140. These decisions are now denoted as “CG”. They are not starred decisions. Those latter are decisions which are binding on points of law. The requirement to apply CG cases is rather different: they should be applied except where they do not apply to the particular facts which an Adjudicator or the Tribunal faces and can properly be held inapplicable for legally adequate reasons; there may be evidence that circumstances have changed in a material way which requires a different decision, again on the basis that proper reasons for that view are given; there may be significant new evidence which shows that the views originally expressed require consideration for revision or refinement, even without any material change in circumstances. It may be that the passage of time itself or substantial new evidence itself warrants a re-examination of the position, even though the outcome may be unchanged. It is a misunderstanding of their nature, therefore, to see these cases as equivalent to starred cases. The system does not have the rigidity of the legally binding precedent but has instead the flexibility to accommodate individual cases, changes, fresh evidence and the other circumstances which we have set out.

141. The comments of the Court of Appeal in S and Others [2002] INLR 416, while recognising the role of the Tribunal in giving guidance, appear to have thought that the Tribunal guidance on country conditions was binding as a legal precedent in the way in which a starred conclusion on a point of law would be. But S and Others was not starred for that guidance, but for the point of law which arose. We have pointed this out in DK and elsewhere and we hope that it is now widely understood. It led to a standard being proposed for such cases, which may be ideal but cannot always be necessary in order for guidance to be given and for the injustice which inconsistency itself can bring to be avoided. Unlike starred decisions, it is always possible for further evidence to show that the original decision was wrong or to expose other issues which require examination. They are not accurately understood or described as “factual precedents”.

142. The system enables the parties and the judiciary to know where to look for what the Tribunal sees as the relevant guidance, the parties to know what they have to deal with, and , if they wish to take issue with it, what it is that has to be the target of their evidence or argument. It enables parties to rely on the material which others have had accepted without reproducing or repeating it every time, or if it has been rejected, to know that there is no point in repeating it. Consistency and the justice which that brings can be provided for, even though differing and perhaps reasonable views can be taken of a wide variety of material. It also has the advantage of enabling the understanding of country conditions to be refined as successive decisions may lead to the identification of consequential issues to be grappled with which had hitherto been unrecognised; the Turkey cases are an example. There is recognised scope for improvement and parties can focus their evidence and arguments upon the aspect with which they take issue. The IAA website has made these cases publicly accessible.

143. We can see the operation of the system here. The decision in FG should have been considered by the Adjudicator, but it could legitimately have been distinguished by reference to the significant new 2004 evidence, or by reference to the practicality of safe access considered in SH but not in FG. The consideration of the cases brought forward for general use, and not just for two cases, the views of Professor Lewis and Dr Luling, which have been influential and helpful all round. They considered practicality of access and the related escort issue. The conflict between the second or third Adjudicator decisions would have been avoided had our decision been available and no appeal would have been necessary in the first case.
144. The system, whereby such guidance is given, is one of the chief reasons for the Panel structure in the new AIT. It may be refined and improved but it will be part of the continuing input into immigration judge decision-making in much the same way as it is now. The haphazard ways of old will not return. Those ways were productive of inconsistency, incoherence, injustice and waste.

MR JUSTICE OUSELEY
PRESIDENT
Appendix A

In addition to the judgment of the House of Lords in Adan [1997] 1 WLR 1107, the following Tribunal cases were cited: SA (Persecution-Eyle-Weak) Somalia CG [2002] UKIAT 06665, FB (Risk-Class-Midgan) Somalia CG [2002] UKIAT 06753, AH (Midgan-Disabled Woman-Relocation-Mogadishu) Somalia CG [2002] UKIAT 07343, NG (Risk-Female Eyle-Internal Displacement) Somalia CG [2003] UKIAT 00011(previously known as G (Somalia), AJH (Minority group-Swahili speakers) Somalia CG [2003] UKIAT 00094, AW (Article 3-Risk-General Situation) Somalia CG [2003] UKIAT 00111, AH (Town Tunni regarded as Bravanese) Somalia [2004] UKIAT 000144, SH (Return-Gedo-Burden of Proof) Somalia [2004] UKIAT 00164, MN (Town Tunni regarded as Bravanese) Somalia CG [2004] UKIAT 00224, FG (Risk-Single Female-Clan Member-Article 3) CG Somalia [2003] UKIAT 00175, AM (Use of Sharif Name) Somalia [2004] UKIAT 000110 and KS (Minority Clans-Bajuni-ability to speak Kibajuni) Somalia CG [2004] UKIAT 00271.

Appendix B

List of background materials placed before the Tribunal

CIPU assessments and reports for April 2002, October 2002, April 2003, April 2004 and October 2004.
Home Office Operational Guidance Notes: Somalia V6 May 2004.
US Country Report on Human Rights Practices 2003 (February 2004).
UNHCR Position on the Return of Rejected Asylum-Seekers to Somalia, January 2004.
UNHCR London Office letter of 2 November 2004 headed, “Conditions on return, IDP camps around Mogadishu, Somalia”.
The joint British, Danish and Dutch fact-finding Mission (17-24 September 2000).
The joint British and Danish fact-finding mission to Nairobi (Kenya) and Baidoa and Belet Wayne, Somalia, “Report on political, security and human rights developments in southern and central Somalia, including South West State of Somalia and Puntland State of Somalia”, 20 May to 1 June 2002.
The joint Danish, Finnish, Norwegian and British Fact finding mission to Nairobi, Kenya 7-12 January 2004 published 17 March 2004 entitled “Human Rights and Security in Central and Southern Somalia”.
Immigration and Refugee Board of Canada, “Somalia: The situation of minority groups and their members”, 9 August 2004.
Amnesty International, UK, “Get it right: how Home Office decision-making fails refugees (Report excerpt: Somalia refusal letter and Amnesty International comment”, 9 February 2004).
Global IDP Project (Norwegian Refugee Council), “Internally displaced Somalis face uncertain future after years of state collapse”, 24 November 2004.
Netherlands Ministry of Foreign Affairs, “General country report Somalia”, 22 Nov 2004.
Expert report from Professor IM Lewis dated 24 October 2004.
Expert report from Dr Virginia Luling dated 25 January 2004 entitled “Opinion on the Return of Unaccompanied Women to Mogadishu”.

There were also some miscellaneous other items notably an unidentified newspaper article dated 29 July 2004 by Richard Walker and Tim Fisher, entitled, “Killing Rekindles asylum row” and a BBC News report dated Mon 24 January 2005.