MA (Somalia) v Secretary of State for Home Department

A notice of a decision to remove which states a country under the notice regulations does not itself give removal directions. It records a proposed destination so that its safety may be tested on appeal.

Where disputed nationality findings make that proposal academic, and the Secretary of State formally withdraws any intention to remove the appellant to that country, the Tribunal need not determine an assumed human rights risk there. It may uphold the underlying decision to remove, provided the withdrawal is recorded in the order and adequate interim safeguards exist.

An appellate challenge to asylum fact-finding succeeds for inadequate reasons only where the decision cannot be understood, or for irrationality only where no sensible tribunal could have reached it.

MA claimed asylum and humanitarian protection as a Somali Bajuni woman. The Secretary of State rejected her claimed Somali nationality and issued notices refusing leave to enter and stating that, if removal became necessary, directions would be given for Somalia.

An Immigration Judge accepted that MA was Bajuni but found that she was not from Somalia, and dismissed her asylum and human rights appeals. On reconsideration, Senior Immigration Judge Allen found no error of law and considered that the Secretary of State would have to reconsider removal in light of those findings.

MA appealed on two grounds: that the nationality finding was inadequately reasoned or irrational, and that her article 3 claim required an independent determination because removal to Somalia would be unsafe for a lone Bajuni woman with a child.

1. Appeal dismissed. Rix LJ, with whom Wilson and Laws LJJ agreed, held that the Immigration Judge’s nationality and credibility findings disclosed no error of law. The tribunal gave intelligible and balanced reasons for treating MA’s ability to speak some English, her reference to a Kenyan dance as Bajuni custom, and the account of financing her journey as relevant to whether she had lived in Somalia. An appellate court may intervene for inadequate reasons only where it cannot understand why the tribunal decided as it did, and for irrationality only where no sensible tribunal could have reached the decision.

2. The notice did not contain removal directions. Under regulation 5(1)(b) of the Immigration (Notices) Regulations 2003, Somalia was a proposed country of removal, not part of the operative decision to remove. Under the Nationality, Immigration and Asylum Act 2002, free-standing removal directions were not themselves an appealable immigration decision.

3. The court accepted the Secretary of State’s formal undertaking that MA would not be removed to Somalia. The safety of return there was consequently academic, even on the assumption that it would breach article 3. Section 86 did not compel the Tribunal to decide that moot issue or to allow an appeal against a decision which remained lawful as a decision to remove.

4. The withdrawal of the Somalia proposal should be recorded in the order, so that its effect is clear. Any later proposal to remove MA elsewhere would fall to be dealt with when made. Rix LJ expressed the non-binding view that an entirely new destination might generate a fresh appealable decision, notwithstanding that free-standing removal directions would ordinarily be challenged by judicial review.

5. The court rejected the asserted interim “limbo”. MA could leave voluntarily if she was Kenyan, and the Secretary of State could regularise her interim position through temporary admission.

• Court of Appeal (Civil Division): MA’s appeal was dismissed: [2009] EWCA Civ 4.
• Asylum and Immigration Tribunal: Senior Immigration Judge Allen, on reconsideration dated 29 January 2008, upheld the Immigration Judge’s dismissal of the asylum and human rights appeals.
• Asylum and Immigration Tribunal: Immigration Judge Parkes, by determination dated 20 July 2007, found that MA was Bajuni but not from Somalia and dismissed her appeals.