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

In a disputed nationality claim, membership of a transnational ethnic community does not establish nationality. The fact-finder must assess the relevant indicators, including language and knowledge of the claimed country’s geography, customs and occupations. No single indicator is decisive. Adverse credibility findings about an applicant’s narrative may be relevant, but lies on other matters do not by themselves make one of two plausible national origins more likely than the other. The decision-maker must engage with material expert evidence and explain why the evidence does or does not establish the claimed origin. An appellate court cannot uphold an inadequately reasoned determination by supplying reasons which the original fact-finder did not give.

The appellant claimed asylum as a Somali national and member of the Bajuni community. The Secretary of State rejected his fresh asylum claim, application to revoke a deportation order and claim for humanitarian protection on the basis that he was not Somali.

On second-stage reconsideration, the Asylum and Immigration Tribunal accepted that the appellant was Bajuni but rejected his claimed Somali origin, relying principally on adverse credibility findings concerning his narrative account. The appeal concerned whether the Tribunal had properly assessed the evidence bearing on nationality, including expert evidence and the possibility that the appellant was from Kenya rather than Somalia.

Appeal allowed. The determination was set aside and the matter was remitted to the Asylum and Immigration Tribunal for fresh reconsideration.

1. Membership of the Bajuni community was not sufficient to establish Somali nationality because Bajuni communities existed in both Somalia and Kenya. The fact-finder therefore had to assess the relevant indicators of origin. These included knowledge of KiBajuni, knowledge of Somali where relevant to the claimant’s personal history, and knowledge of the Bajuni way of life in Somalia, including geography, customs and occupations. No one factor could be treated as decisive. This approach was identified in AJH (Minority group-Swahili speakers) Somalia CG [2003] UKAIT 00094.
2. The Immigration Judge had not expressly addressed the relevant factors, particularly the appellant’s knowledge of life in Somalia. A general reference to considering the evidence in the round did not demonstrate the required analysis. If the conclusion was that there was no reasonable degree of likelihood that the appellant came from Somalia, the determination needed to explain why.
3. Credibility remained relevant. A person ordinarily believed when asserting a nationality might be accepted on that evidence, while a person whose credibility was nil would gain little from the assertion alone. However, lies about the narrative account did not themselves make it more likely that the appellant came from Kenya rather than Somalia.
4. The expert reports were objective and even-handed. The matters identified in them, including factors supporting and undermining the claimed origin, required proper consideration by the fact-finder. The Court of Appeal could not rely on weaknesses which the Immigration Judge had not given as reasons for the decision.

• Court of Appeal (Civil Division) — The appeal was allowed, the AIT determination was set aside and the matter was remitted for fresh reconsideration: [2009] EWCA Civ 466.
• Asylum and Immigration Tribunal — An initial panel dismissed the appeal. On reconsideration, an error of law was found and the matter proceeded to second-stage reconsideration. The Immigration Judge dismissed the appeal in a determination promulgated on 5 September 2008.