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

In assessing whether a person from a minority clan faces persecution on return, the availability of majority-clan protection must be assessed over the relevant period as a whole. A single failure of protection, including during one incident, does not establish that protection was generally unavailable or permanently lost. The issue is ordinarily one of fact and the application of country-guidance principles to the evidence. A challenge which merely disputes the tribunal’s factual assessment cannot be converted into a question of law by reformulation.

The appellant, a Yibir from Somalia, claimed asylum after alleging attacks, detention and mistreatment. His account was accepted as credible by Immigration Judge Cockrill, but the Secretary of State obtained reconsideration because the decision had not addressed the country-guidance case YS & HA Somalia CG [2005] UKIAT 00088.

Immigration Judge Freestone identified a material error of law. On reconsideration, Immigration Judge Jones QC found no sufficient evidence that majority-clan protection was unavailable and concluded that it remained available on return to Mogadishu. The appellant challenged that conclusion in the Court of Appeal, principally by arguing that the evidence, including a period of detention, showed that protection had been lost or was unavailable.

1. Application refused. The Court of Appeal declined to permit the appellant to advance a genuinely new ground at that stage. The reformulated argument was nevertheless considered on its merits.
2. Immigration Judge Cockrill had made a material error of law by failing to refer to the relevant country guidance in YS & HA Somalia CG [2005] UKIAT 00088, which required specific findings concerning the availability of clan protection.
3. The availability of majority-clan protection had to be assessed over the whole relevant period. The fact that protection may have failed on one occasion did not establish that it was generally unavailable. Immigration Judge Jones was entitled to consider the appellant’s attacks and detention in their wider context and to conclude that the evidence did not show that majority-clan protection had been lost or would be unavailable on return.
4. The argument that the final period of detention necessarily demonstrated loss of protection was a factual challenge. The judge had expressly considered that period, and the Court of Appeal found no failure to take it into account.
5. Different tribunals may reach different factual conclusions on different evidence. A decision in another case involving an allegedly similar period of detention did not turn the present factual dispute into a question of law.

• Court of Appeal (Civil Division) — application for permission or relief refused. The court upheld the conclusion reached on reconsideration that there was no material error in the ultimate assessment that majority-clan protection was available.
• Asylum and Immigration Tribunal — Immigration Judge Cockrill accepted the appellant’s credibility, but reconsideration was ordered after failure to address the relevant country guidance. Immigration Judge Jones QC subsequently found that the evidence did not establish the unavailability of majority-clan protection.