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

This is a renewed application for permission to appeal against a decision of the Asylum and Immigration Tribunal prepared on 18 October 2007 and taken on a second stage reconsideration. By it the AIT dismissed the applicant’s appeal brought on asylum, human rights and humanitarian protection grounds against the Secretary of State’s refusal of asylum and leave to enter the United Kingdom. Permission to appeal to this court was refused by the Senior Immigration Judge on 10 January 2008 and again by Richards LJ on consideration of the papers on 22 April 2008.

The applicant is -- or I should strictly say allegedly is -- a Somali national born on 1 January 1980. She claimed to have arrived in the United Kingdom on false papers on 20 July 2005. Shortly thereafter she made an asylum claim leading to the Secretary of State’s refusal decision in September 2005.

She claimed to be a member of a particular sub-clan. She said that she left Somalia in 1992 after an attack in which her father was murdered, and lived in Kenya for 13 years until 2005 when she came to the United Kingdom via Ethiopia. She claimed it was unsafe for her to continue to live in a refugee camp in Kenya because of the racist attitudes of Kenyans working there and the fighting between rival groups of Somali residents in the camps. Members of minority clans were persecuted by members of the majority clans.

So that was in barest outline her case on the merits. In the event the AIT was not satisfied that the applicant had told the truth either about the circumstances of her entry into the United Kingdom (see paragraph 37) or what had happened to her over the 13 years before she came to the United Kingdom (paragraph 48). The AIT gave very extensive reasons for these credibility findings. Nor was the AIT satisfied (paragraph 57) of the applicant’s claimed ethnicity or clan membership. In those circumstances none of her claims on the appeal was made out, even applying the appropriate low standard of proof. So the appeal was dismissed.

There are six grounds of appeal; though Mr Briddock representing the applicant this morning has indicated that he abandoned ground 3, about which I will say no more. It is convenient first just to mention grounds 5 and 6. These assault the AIT’s credibility findings. It is said for example that insufficient account was taken of the fact or the assertion that the applicant had previously been represented by incompetent solicitors; that went to a question whether certain corroborative evidence might have been obtained.

The reference to the previous solicitors in fact calls up a theme that is inherent in much of Mr Briddock’s case. I will come to it again when I turn back to ground 1. It is also said under the credibility head that no reason is given for not accepting a proper explanation for a particular mistake that had been made relating to the African’s clan membership. I have to say -- and I do not propose to deal with it at any length -- that with respect to Mr Briddock who has presented the case both forcefully and economically, there is nothing in any of these points, as Richards LJ found. They are, I am afraid, an all too familiar attempt to turn fact into law, something that I and many other judges have frequently underlined and drawn attention to but still it is done in case after remorseless case.

There are four other grounds. The first -- and I apprehend Mr Briddock would say most substantial -- is that the AIT unfairly refused an adjournment. This is what the AIT said:

“7.

An adjournment of the appeal was sought in writing by the Appellant by fax of 15 October, on the basis that time should be given to the Appellant to instruct an expert to provide a report into her ethnicity. It was asserted that it would be unjust to hear the appeal in the absence of such evidence. I refused that application since I was not satisfied that a fair hearing of the appeal could no take place. I noted that the decision to refuse the Appellant’s application was made two years ago, and that there had been ample time to arrange such evidence. I noted that a challenge was made to the Appellant’s claim to clan membership from the outset, and that despite a number of different representatives no such evidence had been filed on the Appellant’s behalf. I considered it extremely difficult to envisage consecutive professional advisers all separately failing to identify this as an issue central to the appeal. In any event regard must be had to those other claimants awaiting an appeal hearing in order to resolve their immigration status. Nor was it possible to see how an expert could resolve the inconsistent claims to clan membership made by, and on behalf of, the Appellant.

8.

The application was renewed before me by Mr Briddock on the same grounds as the written application. He had not been informed by his instructing solicitors of the earlier application, and/or its refusal. He told me that attempts had been made to find an expert witness sine 4 September 2007, but no explanation for why no expert had been instructed earlier (if indeed that were the case), or why six weeks later the Appellant was still not in a position to disclose a report. I refused the renewal application for the same reasons given on the paper application.

9.

On revising the Tribunal’s file further for the purpose of preparing this Determination I note that in a letter of 24 March 2006 the Appellant’s second solicitors asserted that the first solicitors had identified the need for such an expert in 2005. As I suspected therefore all three representatives have throughout been well aware that the issue of ethnicity was central to the appeal, and of the possibility of obtaining expert evidence on that disputed issue of ethnicity.”

It is said that the AIT failed to have regard to the fact or alleged fact that the applicant’s incompetent previous solicitors were responsible for not having obtained expert evidence earlier and failed also to take into account counsel’s instructions as to why no report was obtained between the first and second stage reconsideration. Mr Briddock has referred with some force to the previous determination of Senior Immigration Judge Chalkley giving reasons for the reconsideration in which the conduct of the earlier solicitors has some prominence. However it seems to me plain beyond argument that the AIT at the second stage reconsideration was, first, entitled to take its own view of the importance or otherwise of what had been done or not done by the previous solicitors; and secondly that is what the AIT in fact did. It is not possible to suggest that the AIT at the second stage were in some way unaware of the allegations of incompetence by the previous solicitors. It is equally impossible to suggest that the AIT was bound by any particular view of the merits relating to the previous solicitors by anything said by Senior Immigration Judge Chalkley. The AIT’s second stage determination abounds with references to the previous solicitors. Senior Immigration Judge Chalkley’s reasons are quoted in paragraph 12 of the later decision. All that has happened here is that the Immigration Judge conducting the second stage reconsideration has correctly directed himself to hear the appeal afresh and has done so. There is nothing in this point. It was a matter for the AIT to decide whether or not to grant an adjournment. There is no legal error in the refusal to do so.

The second ground is in a sense linked to the first. It is to the effect that the AIT allowed its view of the merits to be coloured by questions as to the force of the applicant’s allegations of incompetence by the previous solicitors and to have gone behind Senior Immigration Judge Chalkley’s earlier decision. As I have already said it does not seem to me that the AIT at the reconsideration did anything other than decide the case for itself on the merits as it appeared to the Immigration Judge at that time. At paragraph 13 of the determination this is said:

“Nevertheless it seems to me to be inappropriate to enter now into an attempt to resolve the conflict of evidence between the Appellant and her first solicitors as to whether she was, or was not, told to attend the hearing of her appeal. Accordingly I hear the appeal afresh as directed.”

Then I turn to ground 4. The suggestion there is that the AIT prejudged certain issues before hearing the evidence. Counsel cites paragraph 7 of the decision which I have already read. The short passage in question is as follows:

“Nor was it possible to see how an expert could resolve the inconsistent claims to clan membership made by, and on behalf of, the Appellant.”

I cannot see that the AIT was not entitled to make this comment. It is not a matter of prejudgment. It is simply a view formed as to whether an expert could resolve what was a matter of inconsistent assertions made by the appellant. There is nothing, I think, in ground 4.

Despite Mr Briddock’s efforts this application will be refused.