SM & Ors (Somalia) v Secretary of State for the Home Department

LORD JUSTICE LAWS: These are applications for permission to appeal in three linked cases against the decision of the Upper Tribunal sent out on 3 October 2014 in a country guidance case relating to Somalia, specifically Mogadishu.

Pursuant to directions given by Beatson LJ on 6 March 2015 following guidelines set out by Maurice Kay LJ at paragraph 77 of SG (Iraq) [2012] EWCA Civ 940, the applications were not first submitted to a Lord Justice for a decision on the papers, but have been listed for a hearing before two Lord Justices on notice to the Secretary of State. The Secretary of State has not, in fact, appeared.

Earlier country guidance in relation to Mogadishu had been given by the Upper Tribunal in AMM [2011] UKUT 445 decided in November 2011. The core of that guidance made reference to Article 15(c) of the Qualification Directive which defines harm as impugning:

The AMM guidance accepted (paragraph 350) that:

In the present case, the Upper Tribunal altered this guidance. An important factor in the decision was their findings concerning a change in the tactics of Al-Shabab who withdrew from Mogadishu or very substantially withdrew in August 2011. The Upper Tribunal said this at paragraph 368:

At paragraph 399, they said:

Detailed guidance is then given by the Upper Tribunal in particular at paragraph 407.

All three Applicants seek to assert that this conclusion was not open to the Upper Tribunal on the evidence. There are other points both generic and specific to the individual cases to which I will refer in due course. I will introduce the facts of the three cases in barest outline.

MOJ is a Somali national born on 10 October 1989. He has not been in Mogadishu since he was an infant. He is a member of the Gadabuursi clan, which is a minority clan in Somalia. He entered the United Kingdom on 22 April 2004 with an entry clearance and was granted indefinite leave to remain. He committed criminal offences here including robbery.

A deportation order was made, but the decision to deport was withdrawn on 10 May 2012 after MOJ made an asylum claim on 3 April 2012. That was refused. The Secretary of State then proposed to deport the Applicant under the automatic deportation provisions of the UK Borders Act 2007. The FTT dismissed his appeal against that decision. The matter went to the Upper Tribunal by leave of Upper Tribunal Judge Storey. The FTT's findings of facts were preserved: see paragraph 4271 of the Upper Tribunal decision.

MAA is a Somali national from Mogadishu born on 13 November 1986. He arrived in the United Kingdom on 7 April 2012 and claimed asylum on arrival. That was refused on 2 May 2012. The Secretary of State also decided that he did not qualify for humanitarian protection. His appeal was dismissed by the FTT on 23 July 2012. He was granted leave to appeal and on 9 May 2013 Deputy Upper Tribunal Judge Lewis directed that the decision on humanitarian protection was to be remade by the Upper Tribunal, who specifically preserved these findings of fact which had been made by the FTT:

On 5 June 2013 Deputy Upper Tribunal Judge Lewis directed that the Upper Tribunal would receive oral evidence from MA as regards his circumstances or connections in Mogadishu.

SM was born on 2 December 1985 in Mogadishu. He arrived in the United Kingdom with his mother and siblings on 16 July 1987 and has remained here ever since. He was refused asylum on 1 August 2001, but granted exceptional leave to remain until 31 August 2004. He was subsequently granted indefinite leave. He was convicted of a series of crimes including robbery between February 2005 and November 2008. A deportation order was made against him under the UK Borders Act as a foreign criminal.

I turn first to the arguments to the effect that there was no sustainable basis on which the Upper Tribunal could properly change the country guidance given in AMM. In EM (Zimbabwe) CG [2011] UKUT 98, the Upper Tribunal stated that if the Tribunal is minded to depart from an earlier country guidance decision:

This dictum was repeated in the Somalia CG case of AMM itself.

The principal argument for the Appellants, variously formulated however in the different skeletons, is that the material before the Upper Tribunal was not in law capable of justifying the radical change in the country guidance which the Upper Tribunal laid down. Thus it is said that Al-Shabab had already withdrawn from Mogadishu before the earlier case of AMM was decided.

In AMM the Upper Tribunal had stated at paragraph 363:

The Upper Tribunal in AMM also said this at paragraph 366:

The contrast there between Article 15(c) of the directive and Article 3 of the Convention is to be noted.

MA submits that the evidence before the Upper Tribunal in the present case added nothing of substance to what was before the Upper Tribunal in AMM: see paragraph 20 of the skeleton argument prepared by Mr Underwood QC.

SM submits that the Upper Tribunal in the present case proceeded on a mistaken basis that Al-Shabab withdrew from Mogadishu after the AMM decision. Reference is made (see the SM skeleton argument paragraph 57) and submissions made this morning by Mr Toal of counsel, for example, to paragraph 407(c) of the Upper Tribunal. See also paragraph 69 suggesting that casualties statistics for January/February 2012 were unhelpful because they related to a period before Al-Shabab left Mogadishu; paragraph 116 attributing an increase in the number of IED incidents in 2013 over 2012 related to a change in tactics following Al-Shabab's withdrawal from Mogadishu; 126 upon which Mr Toal placed some emphasis this morning that refers to the completion of Al-Shabab's withdrawal a few months after January 2013; then also paragraphs 376 and 377 relying on matters of which it is said the Tribunal knew when it decided AMM. All these references are elaborated in the skeleton to which we have, of course, paid close attention.

MOJ submits (paragraph 23 of Mr Manjit Gill QC's skeleton) that Al-Shabab entrenchments have been withdrawn from almost all of Mogadishu before AMM, but in AMM the Upper Tribunal still found a real risk of harm within Article 15(c) and in some cases an enhanced risk (AMM paragraphs 345, 347); Al-Shabab retained a significant presence albeit not in established military posts (see Mr Gill's skeleton paragraph 2). Details of a remaining or enhanced risk of harm are put forward at his skeleton paragraph 30.

MOJ by Mr Gill assaults the Upper Tribunal's use of statistics. This was a particular focus of Mr Gill's submissions this morning. He says that the emphasis on the rate of casualties was not a proper indicator of risk and that was at the forefront of his oral argument. He asserts, moreover, that on the Upper Tribunal's own findings in the present case they were not entitled to conclude that there had been a "durable change". In particular, paragraph 385 of the Upper Tribunal's determination in the present case is cited. There they said:

There are some ancillary points on the merits, but the foregoing describes the principal thrust of the challenge as it was formulated in the skeletons and largely advanced today. Mr Underwood had a somewhat different point as to the approach taken by the Tribunal and the language of paragraph 2E of the Qualification Directive. I will make further reference to that shortly.

Should there be permission to appeal in relation to these points on the overall merits of the generic decision?

The Upper Tribunal addressed the AMM decision at paragraphs 36 to 43 along with material decisions of the European Court of Human Rights: Sufi and Elmi applications number 831907 and 1144907 and also KAB v Sweden [2013] ECHR 814. They cite paragraphs 345, 357, 358, 363, 367 and 367 of AMM. The first of those, paragraph 345, repeats the durability test from the case of EM.

The Upper Tribunal then embark on a very detailed account of the evidence before them and the submissions made to them. Their conclusions start at paragraph 33 and go through to paragraph 425. I have studied the whole passage. I have not set out large citations from it, but I will state my conclusions as to the merits of this challenge as follows.

(1) There is no doubt in my mind that the Upper Tribunal was fully aware of Al-Shabab's withdrawal from Mogadishu in August 2011 and that that had been considered in AMM. They cite references to the fact which appear in the AMM decision: paragraph 366 of the latter cited at paragraph 41 of the present decision. See also Sufi and Elmi paragraph 87, cited at paragraph 42 of the present decision. In their conclusions, they refer to Al-Shabab's withdrawal paragraph 368.

(2) Reading the conclusions as a whole, this is at the centre of the case. It is clear to my mind that the Upper Tribunal have not regarded the withdrawal of Al-Shabab in August 2011, which was clearly before the Tribunal in AMM, as a single point of critical change. What they have done is to form a judgment that the situation has evolved over time since August 2011 so that by the date of their decision in October 2014 they were justified in changing the country guidance.

(3) Their findings as regards this evolution include the following: paragraph 344 to 346 and 349, Mogadishu's economic revival; the return of over 300,000 citizens in the 6 months before April 2012; very large inward investment; an estimated over 500,000 returnees by August 2012. This moreover links with the observation at paragraph 386:

Paragraph 354 refers to a reduction of something like 85 per cent in the number of people leaving Mogadishu since 2011. The fact that there is now a functioning central government in Mogadishu bears on the level of protection available; paragraph 361. The structure of ideology of Al-Shabab have changed in important respects since May or June 2013; paragraph 370. A news report of May 2013 described important improvements; paragraph 374. There has clearly been a significant reduction in civilian casualties over time. This a matter of some emphasis. See the citations given at paragraph 376 of the determination.

In my judgment, these are all perfectly legitimate points as to the degree of risk as contemplated by Article 15(c).

In all these circumstances, I do not accept that there was nothing of significance before the Upper Tribunal to illuminate events since the AMM decision or that the Upper Tribunal proceeded on a mistaken basis as regards real risk or indeed anything else.

The Upper Tribunal accepted that there remained risks of serious harm since AMM in some circumstances. I do not consider that they mistook the evidence, misused statistics or the casualty figures, found facts, (see paragraph 385) which should have contradicted a durable change since AMM or misunderstand the proper thrust of Article 15(c).

In particular, I cannot see that such emphasis as the Upper Tribunal laid (paragraph 113 and 114 referred to by Mr Gill this morning) on the rate of casualties taken in the context of the whole case begins to amount to a misdirection as regards risk of harm.

I do not think that Elgafaji [2009] 1 WLR 2100 paragraph 33 and following, which was cited to us, is to the contrary. The Upper Tribunal in fact cited paragraph 43 of Elgafaji at paragraph 31 of the determination indicating that that was, in essence, the core of that decision.

The rate of casualties is, to my mind, plainly a driver of the degree of risk of harm. This issue was, as I have indicated, at the forefront of Mr Manjit Gill's submissions for MOJ, but his case seems to me, with respect, to have an artificial quality.

Mr Toal's plea for greater certainty, for scepticism as to the possibility of real change, for a wary eye in relation to the evidence about casualties is, in essence, a plea to the merits rather than the law.

Mr Underwood has submitted, and I have foreshadowed this, that the Upper Tribunal have not followed Article 2E of the Directive properly. They have sought to find whether there was a real risk or not rather than ask themselves whether there were substantial grounds for believing that there would be a real risk. He referred in particular to paragraphs 462 and 463 of the Upper Tribunal which concerned the facts of his client's case.

However, it seems to me plain, looking at those paragraphs in their context, that what the Tribunal were there doing was responding to particular submissions on fact that had been made.

I do not accept that there was any self-misdirection by the Tribunal as regards the generic issues. Indeed, at paragraph 399 of the determination, part of which I have already read, it is stated in the last sentence:

That is, of course, I accept a reference to the Convention rather than Article 15(c).

In all these circumstances, for my part I would refuse permission to appeal on what might be called the generic points on the merits of the case.

The next issue is elaborated in particular by Mr Toal for SM. He referred to it in the papers as a procedural issue.

As is well-known, country guidance cases have a special status. Upper Tribunal (Immigration and Asylum Chamber) Guidance Note No 2 of 2011 is headed "Reporting Decisions of the Upper Tribunal Immigration and Asylum Chamber". Paragraph 11 of that note provides in part as follows:

Mr Toal referred to two other provisions in the note, but, with respect, I will not set them out.

It was submitted to the Upper Tribunal, and the argument is reiterated here, that this provision in paragraph 11 compromises the independence of the Upper Tribunal by opening the door to outside advice at the instance of the outsider and is procedurally unfair because it may be that there is factual input from the country convener or reporting committee not then put to the parties.

It is also said that the Upper Tribunal failed to confront this point with adequate reasons. Lastly, there is a complaint that in relation to this part of the case, the Upper Tribunal relied (paragraphs 12 to 18) on a number of authorities not drawn to the Applicants' attention at the time, but Mr Toal has not, expressly at any rate, pursued that dimension this morning.

One of the materials to which the Upper Tribunal referred was Lord Bingham's essay on judicial ethics in which this was said and quoted by the Upper Tribunal at paragraph 12:

The Upper Tribunal considered that this observation belonged to a well-established common law tradition. They also drew attention (paragraph 14) to materials contained in provisions touching the Immigration and Refugee Board of Canada and in particular a decision of the Supreme Court of Canada in Consolidated-Bathurst Packaging Ltd [1990] 1 SCR 282 to which Mr Toal referred this morning and in which, among other things, the court made clear that there was in the circumstances there prevailing no breach of the audi alteram partem rule.

The Upper Tribunal noted this quotation in paragraph 17 of their determination. There would be no such breach "provided that factual issues are not discussed at a full board meeting and that the parties are given a reasonable opportunity to respond to any new ground arising from such a meeting."

Mr Toal placed some emphasis on the fact that as appears under paragraph 116, the advice being contemplated might be proffered rather than sought. However, it seems to me that is unobjectionable, provided of course, and this needs emphasis, that the principles of judicial independence and fairness to the parties are strictly observed. I consider that Tremblay [1992] 1 SCR 952 to which Mr Toal also referred is a decision very much geared to its own circumstances.

It was, I should say in passing, obviously accepted by the Upper Tribunal that private attempts by a party to influence a judicial decision were, as Lord Cotton put it in 1849, "always to be reprobated". But equally obviously, this was far away from paragraph 11 of the Guidance Note.

The reality is that the Guidance Note does not contemplate and the Upper Tribunal, in my judgment, would not countenance any attempt to influence the Upper Tribunal's decision on a matter upon which the parties ought to have a voice but were to be denied it. The Upper Tribunal was itself as pains to emphasise in relation to Lord Bingham's essay that:

I should also refer to paragraph 21 to which Mr Underwood made specific reference. There the Tribunal said this:

There was some discussion at the bar, and Mr Underwood's submissions touched this, as to whether the intention of the advice referred to in paragraph 11 was limited to matters effectively concerning the publication of a country guidance decision and the practicalities attending that issue.

Mr Toal's case was that the paragraph appears to range much wider and to open the door to advice being given effectively on the merits of the case. Mr Underwood submitted that was not the purpose of paragraph 11, but paragraph 21 suggested that the Upper Tribunal regarded it as going further than in truth it did.

I am inclined to think that the purpose of the paragraph in the Note is indeed limited as suggested. But even if not, it seems to me that the advice would not be objectionable provided, and I repeat, that the basic principles of fairness and judicial independence would always prevail. I see no reason to suppose that the Upper Tribunal would contemplate departing from those principles and there is certainly no evidence that it did so here.

I accept that it would have been better if the Upper Tribunal had said more about the nature of advice which the paragraph contemplates, but that does not, as it seems to me, make a case for holding that there was a legal insufficiency of reasoning here. That was one of Mr Toal's submissions and for my part, I would reject it.

Paragraph 11 of the Note is perhaps surprising, but there is no legal vice that has been identified and there is nothing here that would merit the grant of permission to appeal. I would therefore also decline permission as regards this part of the case.

There remains some other points going to the Upper Tribunal's treatment of the individual cases. Thus, Mr Gill says that there is a potential misunderstanding in the Upper Tribunal's position as to his client's contacts in Somalia with family members. Also the Tribunal, he says, do not appear to have given weight to the fact that his client has been in the United Kingdom from a young age. None of those points merits a second appeal.

For all these reasons, I would dismiss these applications.

LORD JUSTICE UNDERHILL: I agree.

I would only wish to echo my Lord's observation in connection with the issue about paragraph 11 of Guidance Note No 2 that it is a pity that the Upper Tribunal in its determination did not explain the character of the advice which it is contemplated that the country convener or the reporting committee may tender under that paragraph, or indeed of any advice actually tendered in this case.

It seems to me highly likely, given the title to the Guidance Note and the introductory wording of paragraph 11 itself, that the advice which it is contemplated that the reporting committee may give will be confined to matters relating to the reporting process and are wholly unexceptionable.

But I accept that it is less easy to infer with certainty exactly what kind of advice it is contemplated that the country convener may give as distinct from the reporting committee. It would have been useful, certainly once the point was raised, to have that authoritatively explained.

It is, in fact, not difficult to imagine the country convener's role also being limited to minor matters essentially relevant to the reporting process, but that is not what the Upper Tribunal said. There is some possibility (I must accept though I remain rather skeptical) that the role of the convener contemplated under the paragraph may be more substantive. But none of this goes to the essential point made by my Lord.

The basic obligation to disclose and seek the comments of the parties on any matters coming to the attention of the Tribunal from other Upper Tribunal judges or indeed any other source which was substantially material to the decision being taken and on which it had not yet heard submissions is bred in the bones of any judge. It is inconceivable that the three judges in this case would have ignored it, all the more so in the light of the elaborate restatement of the relevant principles contained in their determination.