AA (Somalia) v Secretary of State for the Home Department

Following refusal on paper by Richards LJ, the appellant makes an oral application for permission to appeal. Permission to appeal had already been refused by the AIT. The decision said to contain an error of law is that of Immigration Judge Griffin, who heard the appellant’s appeal on 14 September 2006 and prepared his determination and reasons six days later. It was submitted to the AIT that Immigration Judge Griffin’s determination showed an error of law and that submission was rejected by Immigration Judge Ward in April 2007, having heard from Miss Phelan who has been counsel for the appellant throughout.

In order to succeed, she has to show that there is a real prospect of an appeal succeeding; she needs to show that there is an arguable error of law contained in the decision of Immigration Judge Griffin, albeit not accepted by the AIT and by Richards LJ.

The appellant is a male who arrived in the country on 22 June 2005 and claimed asylum at the port. He is, it is accepted, a national of Somalia. The thrust of his claim before Immigration Judge Griffin was that he was a member of one of Somalia’s minority clans and as such would be persecuted on his return or, alternatively, suffer treatment which would put this country in breach of its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The issue which the judge had to resolve, therefore, was whether the appellant had shown to the low standard that he was a member of the identified minority clan. His claim was that he was a member of the minority clan Ashraf -- a sub-clan of the Benadiri; sub-clan Hassan. At page 9 of his determination are found the findings made by Immigration Judge Griffin. He notes that the appellant made no claim whatsoever in his screening interview as to his clan. Miss Phelan took objection to that. We looked at the screening interview together. He was asked whether he was a member of a particular social group. He said no. That was obviously an important factor in resolving the appellant’s claim. The thrust of his case, as later developed, was that he had suffered and would suffer persecution as a member of a particular clan, and yet in his screening interview there is no reference to that. In paragraph 29 Mr Griffin identifies a further difficulty with the claim being put forward by the appellant. He says this:

As the judge pointed out, there is no reference to Fiqi-Omar as being a minority clan. Indeed, the only reference to Fiqi-Omar is in relation to one of the majority clans. Miss Phelan had told Mr Griffin that he would arrange for relevant material about Fiqi-Omar to be forwarded to the judge, but, as the judge pointed out in paragraph 29, she had not in fact been able to do so.

In paragraph 33, he analyses the evidence linking the appellant to his father and the evidence relating to the production of a birth certificate. It is sufficient to say that Mr Griffin reached the conclusion that the evidence of identification and relationship was unconvincing, inconclusive, unreliable, and he placed no reliance on it. As to the birth certificate, he said that he could place no weight on the document at all. The appellant called a Dr Mullen who, in part at least, damaged the appellant’s claim by saying that the appellant’s recall of Mogadishu was too imprecise for Dr Mullen to affirm that the appellant had resided there recently. As the immigration judge said, that was, of course, the bedrock of the appellant’s claim. According to the SEF, he had only left Mogadishu some two weeks before arriving in England. He had spent most of his life in a part of Mogadishu and, indeed, had been working there. It seems to me that the evidence of Dr Mullen just not only did not give the appellant much help, but undermined an important part of his claim.

In paragraph 36, the adjudicator goes on to say that his conclusions are also based in part upon his findings as to the appellant’s credibility, and he says that there are discrepancies in the evidence, albeit simple ones, and he goes on to set those out -- I shall return to those a little later. He reaches the conclusion that the appellant is not a member of the Ashraf clan.

The first complaint relates to the failure on the part of the immigration judge to deal with the evidence of Mr Alim. His evidence will be found summarised at page 17 of the determination. Mr Alim had made a statement in which he had said that he had spoken to the appellant’s father and that, in his opinion, “his accent was someone of a minority clan”.

He also said that the accent was distinct to a person who was born in Mogadishu. For the first time on the day of the hearing Mr Alim spoke to the appellant, and the effect of his evidence (supported by notes taken by Miss Phelan) was that the appellant had a Mogadishu accent, which had the influence of a minority clan in it. The judge went on to point out that Mr Alim did not seem to be able to help with the current situation in Mogadishu -- in particular, the setting up of the change of government that had taken place since the arrival of the appellant in this country. In my view, the judge ought to have made specific reference to that evidence when reaching his findings. Nonetheless, I find no material of law. The most that Mr Alim was able to say is that the accent had the influence of a minority clan in it. That, in my view, was far too vague to set against the important findings of fact to which I have already referred; in particular, of course, the failure to mention at his screening interview that he was a member of a minority clan and, secondly, the reference to Fiqi-Omar, which, as I have said, is not a minority clan.

Whilst it would have been better for the judge to have made specific reference to Mr Alim’s evidence, in my view his failure to do so cannot be classified as a material error of law.

The second principal complaint relates to paragraph 36, in which the judge refers to various discrepancies. It is said that Miss Phelan’s notes do not support the contention that there were such discrepancies. As to this, Immigration Judge Ward pointed out that her notes cannot be determinative. Miss Phelan has taken me to her record of the evidence given by the appellant about who it was that arranged for the agent to help the appellant leave Mogadishu. In it she says that, looking at the various passages, it cannot be said to be a discrepancy. At the least, it is certainly confusing and, in my view, it cannot be said that the immigration judge writing his judgment so soon after the hearing, with the evidence fresh in his mind, was wrong to reach the conclusion that there was this discrepancy. She has also gone through other alleged discrepancies which Immigration Judge Ward deals with at paragraph 15 and 16. Complaint is also made of the immigration judge’s reliance in part upon the fact that the appellant had been kidnapped. The judge pointed out that the appellant was unable to explain why the kidnappers waited until September to hold the family to ransom again. Immigration Judge Ward rejects that complaint.

What I have to do is to look at the whole of Mr Griffin’s judgment to see whether or not Miss Phelan has shown that there is an arguable material error of law in the ruling. Overall, the immigration judge makes a very convincing case for disbelieving the appellant’s claim that he was a member of a sub-clan. It is right to say that he was fair skinned but that cannot possibly be determinative of the issue. At the end of the day, it was for the immigration judge -- having heard all of the evidence and the submissions of counsel -- to reach the conclusion; and, in reaching the conclusion that he did, it is not arguable that he made any material error of law. Therefore the permission to appeal is refused.