Ali & Anor v Secretary of State for the Home Department

LORD JUSTICE LAWS: This is a renewed application for permission to appeal against a decision of the Asylum and Immigration Tribunal (the “AIT”) given on 14 June 2005. The AIT dismissed the applicant’s appeal against a decision of the Secretary of State made on 6 January 2004 to refuse an extension of the applicant’s need to remain in the United Kingdom. Permission to appeal to this court was refused by Latham LJ on consideration of the papers on 7 December 2005. The application is out of time. I propose, however, to extend time as I have indicated to Miss Gasparro of counsel this morning. It seems to me right to grant permission. I will briefly explain the reasons why.

The applicant and her sister are nationals of Somalia and members of the Tunni Torre clan. The case has a somewhat convoluted history. The applicant entered the United Kingdom with her younger sister as her dependant on 28 July 2001. She claimed asylum on 1 August 2001. That was refused on 13 November 2001. She was then granted exceptional leave to remain until 13 November 2002. She appealed the refusal of asylum. That was dismissed on 15 July 2002. The adjudicator, Mr McKee, did not believe the applicant, holding that her story was “riddled with inconsistencies” (see paragraph 7).

Her application for leave to appeal to the Immigration Appeal Tribunal (the “IAT”) was dismissed on 9 August 2002. She applied to the Secretary of State for further leave to remain on 13 November 2002, when of course her exceptional leave was due to expire. That was refused on 6 January 2004 and this is the decision with which the AIT was dealing in its determination of 14 June 2005. But there are several steps in between. The applicant’s appeal against the decision of 6 January 2004 was first heard by the adjudicator on 6 May 2004. The adjudicator, on that occasion, did not depart from Mr McKee’s findings. The applicant appealed to the IAT.

On 31 January 2005, the IAT concluded that the adjudicator had failed to make findings upon the evidence of two witnesses, other than the applicant, who had testified before him. The IAT also observed that there were two recent cases decided in the tribunal on the position of the Tunni Torre. In the circumstances, they allowed the appeal and remitted it to a fresh adjudicator, and so at length, it came before the AIT under the new statutory arrangements; hence the decision of 14 June 2005, the subject of this application. The IAT heard evidence from the applicant and three other witnesses. In light of all the evidence before them, which included some medical details, they accepted the applicant’s claim that she had been ill-treated in the past and the ill-treatment constituted persecution, and that she had suffered it because of her clan membership (see paragraph 54).

The ill-treatment in question included having been kidnapped in the year 2000 by militia men. She was raped several times whilst detained and she was shot. Her brother was shot dead. Her younger sister was also injured and an elder sister had been killed earlier. As I read the determination of the IAT, they accepted, in essence, all of these matters that had been put forward. After accepting her account of what had befallen her, the IAT said this:

“We note that the last incident took place in 2000. Following her release by the kidnappers, the appellant returned to the family home where she lived with her parents and three surviving sisters. She clearly stated that after the last incident nothing further happened to her. The appellant’s evidence indicated that there was a lurking fear that the militia might return. They in fact did not. She and her sister continued to live with their parents and two surviving sisters until their father made arrangements for them to leave Somalia. We believe from the evidence that the father arranged for the appellant and her sister to leave Somalia in order to get away from the civil war. We agree with the respondent that whilst the appellant and her sister have an understandable desire not to return to a country whose infrastructure has broken down, the appellant and her sister have now shown that they have a well-founded fear of persecution in Somalia over and above the risk to life and liberty inherent in the civil war situation that exists in the country.”

The appeal was dismissed. It is submitted by Miss Gasparro for the applicant that on the in-country material relating to Somalia there has been no change in the country’s situation since the applicant was ill-treated. In the grounds reference is made to this court’s decision in Demirkaya [1999] Imm App Rep 498. Thus the court cited with approval a passage from Professor Hathaway’s well-known book on the law of refugee status:

“Where evidence of past maltreatment exists, however, it is unquestionably an excellent indicator of the fate that may await an applicant upon return to her home. Unless there has been a major change of circumstances within that country that makes prospective persecution unlikely, past experience under a particular regime should be considered probative of future risk. In sum, evidence of individualised past persecution is generally sufficient, though not a mandatory means of establishing prospective risk.”

Further, Stuart-Smith LJ in Demirkaya said this:

“In my judgment, if it is the opinion of the tribunal that there has been such a significant change that the appellant is no longer at risk, it is incumbent upon them to explain why it is so.”

In the skeleton argument, complaint is made of the fact that the IAT do not address the circumstance that the applicant and her sister would be returned to Mogadishu as young single females and that, in itself, would expose them to ill-treatment in violation of Article 3 of the Human Rights Convention.

In the light of Demirkaya, it is arguable here that the IAT has failed to give legally sufficient reasons why, despite the serious persecution which they accept has been suffered by the applicant, they do not accept that that ill-treatment on the face of it has probative force in relation to future risk on return. It is questionable, I think, whether the reasoning in paragraphs 55 and 56 which I have set out is sufficient. I would grant permission to appeal essentially for that reason, although as I have indicated to Miss Gasparro she may argue any other points, in particular the point relating to the circumstances in which the applicant and her sister would be returned to Mogadishu.