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

Article 15(c) protection is additional to protection under article 3 of the European Convention on Human Rights. A civilian need not show that he or she is specifically targeted. A sufficiently high level of indiscriminate violence may create a real risk solely because of presence in the affected area. Personal or group factors increasing the individual risk must also be assessed.

Where the point or route of return is known or can be inferred, the tribunal must determine whether return by that route would be unsafe. Uncertainty about practical details does not justify refusing to address the issue. An appellant’s dishonesty does not by itself defeat a protection claim. Objective evidence relating to the individual circumstances must still be assessed.

Four conjoined appeals concerned the enforced return of Somali nationals. HH appealed an Asylum and Immigration Tribunal decision dismissing her claim under article 15(c). AM appealed an AIT decision which treated the safety of onward travel from Mogadishu as outside its jurisdiction. J challenged the refusal to treat further submissions about return through Mogadishu as a fresh claim. MA, a deportee excluded from refugee and humanitarian protection by his offending, challenged the assessment of article 3 risk on return.

The appeals arose against deteriorating conditions in Somalia and the AIT’s country guidance findings in AM and AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091. The central issues were the assessment of indiscriminate violence, the relevance of the point and route of return, and the effect of an appellant’s lack of credibility.

Disposition. HH’s appeal was dismissed. AM’s, J’s and MA’s appeals were allowed. AM’s case was remitted to the AIT. In MA’s case the court substituted a finding that return to Mogadishu would breach article 3 and that the removal directions were unlawful.

1. Article 15(c). The AIT had wrongly equated article 15(c) protection with article 3 protection and had required a personal differentiator. Elgafaji [2009] 1 WLR 2100 and QD (Iraq) [2009] EWCA Civ 620 establish that specific targeting is unnecessary where indiscriminate violence is sufficiently intense. Personal or group factors increasing the applicant’s risk must nevertheless be taken into account. The error in HH’s case was immaterial because the findings showed that the level of violence was not sufficiently high and that majority-clan women were not shown to face a particular risk.
2. Point and route of return. Under the Nationality, Immigration and Asylum Act 2002, where the route and method of return are known or can be inferred, the tribunal must consider a challenge to their safety. This was consistent with GH (Iraq) v Home Secretary [2005] EWCA 1182 and AG (Somalia) v Home Secretary [2006] EWCA Civ 1342. The AIT erred in AM by declining to assess the known risks from Mogadishu to Jowhar merely because details such as documentation and escort arrangements were uncertain. The case was remitted so that the availability and efficacy of an armed escort could be considered.
3. Credibility and objective evidence. Applying GM (Eritrea) [2008] EWCA Civ 833, lies do not prevent a tribunal from considering independent evidence bearing on the appellant’s particular circumstances. MA’s lengthy absence from Somalia, detention in the United Kingdom, clan background and expert evidence were capable of establishing a real risk that he lacked protection in Mogadishu. The AIT therefore adopted the wrong approach by treating his lies as preventing any assessment of risk.

The court expressed an expressly provisional and obiter view that the Qualification and Procedures Directives generally require safety during return to be addressed as part of the entitlement decision. Only technical obstacles to return may properly be deferred to the removal-directions stage.

• Court of Appeal (Civil Division): appeals determined in [2010] EWCA Civ 426. HH’s appeal was dismissed. AM’s, J’s and MA’s appeals were allowed.
• Asylum and Immigration Tribunal: HH’s and AM’s appeals had been dismissed on reconsideration. MA’s article 3 claim had also been rejected on reconsideration. The AIT’s country guidance findings in AM and AM (armed conflict: risk categories) Somalia CG were reported at [2008] UKAIT 00091.
• High Court of Justice, Queen’s Bench Division, Administrative Court: J’s judicial review challenge to the refusal to accept further submissions as a fresh claim was dismissed.