AN ANALYSIS OF EVIDENCE OBTAINED BY A UK FACT FINDING

MISSION TO NAIROBI IN 2008 IN RESPECT THE RISK OF HARM TO

FORCED RETURNEES TO SOMALIA.

INTRODUCTION

Aims and Objectives

This paper aims to analyse the evidence obtained by a fact-finding Mission of UK

lawyers to Nairobi in August 2008. The particular mission relates to the real risk of harm

in the forced return of Somalis from the UK to South Central Somalia and Mogadishu.

Methodology Summary

The paper is based on empirical research which uses the qualitative rather than

quantitative method, requiring the consideration of primary and secondary sources, direct

reference to most of which is made in the text. The author has chosen to use grounded

theory as it allows a researcher who with prior professional knowledge of the topic to

incorporate their own ideas into a research, rather than rely on a research theory which

has already been developed.

Primary sources are:

The subjective bundle of evidence produced by the Mission during the visit to Nairobi

between 1st and 8th September 2008 which provides background information to the

situation in Somalia. (See Appendix 1 described as the “Nairobi Bundle”)

The decision of the UK Asylum and Immigration Tribunal in AM and AM heard between

27 and 29th October 2008.1

The questionnaire to Mission Participants (See Appendix 2)

The Witness Statement of a Sheikhal Loboge (SL) elder2

1 AM &AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 000912 This evidence is outside the Nairobi bundle as it is specific to 1 appellant and not general background information

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The aim of the mission was to gather information about the humanitarian and security

situations in Mogadishu and and southern Somalia. The paper looks at:

Method of Choice of interviewees

Structure of interviews

Weight given to the evidence by the Asylum and Immigration Tribunal

International Humanitarian Law, the Conflict in Somalia and the decision in AM

and AM

The paper gives a brief history to the conflict in Somalia from 1990 onwards, with

particular reference to the period immediately after the Ethiopian invasion of December

2006 until the decision by the Asylum Immigration Tribunal (AIT) of October 2008.

A brief background to the UK’s appellate immigration and asylum structure is given,

followed by an analysis of the decision in AM and AM with particular reference to the

Nairobi bundle and the evidence of the SL elder. The case concerns the risk of

persecution, serious harm and treatment contrary to Article 3 ECHR3 currently posed to

civilians due to the current internal armed conflict within the meaning of international

humanitarian law and Article 15© of the Refugee Qualification Directive4 which defines

harm to civilians during a period of armed conflict. The Appellants are two Somali

nationals one of whom is SL sub-clan Mogadishu and the other a Bantu from Jowhar in

Southern Somalia. The current position on the decision is given.

Conclusion

The conclusion summarises the weight given to the evidence of the Mission in the

Nairobi bundle in influencing the ratio in AM and AM and analyses why different

weight was given to different types of evidence.

3 Article 3 European Convention on Human Rights: No one shall be subjected to torture or to inhuman or degrading treatment or punishment4 Refugee Qualification Directive 2004/83/EC

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1. METHODOLOGY

1.1 Introduction

The methodology by which information to the mission was obtained used the qualitative

method of grounded research. Although it is not possible to apply a straightforward

description of such targeted research, grounded theory best fits the Mission’s task. This

is because the data collection was the first step in supporting the “theory” that to return

Somalis to Mogadishu and Southern Somalia exposes them as civilians to the risks of

internal armed conflict which require international humanitarian protection. Although

Mission members had that aim in mind before embarking on the Mission, it was only the

data collection which led to this ultimate hypothesis being established. Grounded theory

was developed initially by Glaser and Strauss5 and has the goal of generating concepts

that explain people’s actions, dealing with the real concerns of real people, which is not

just promoting academic theory. Grounded theory is never right or wrong and can be

altered as circumstances change.

Glaser and Strauss subsequently disagreed on how to carry out grounded research but

both agree that this manner of research is well established in refugee studies as it

acknowledges that interviews with refugees are likely to elicit biographical and anecdotal

information. Such grounded research technique proved appropriate in obtaining

information which influenced the decision in AM and AM, thereby directly affecting UK

policy towards the return of Somalis. [Strauss and Corbin 19906].

The information in the Nairobi bundle is based on 1 week of field research in Nairobi,

Kenya from 1st to 8th September 2008 by the solicitors with conduct of the conjoined

cases in AM and AM, the barrister in the case, an interpreter and the author of this report,

5 Glaser BG and Strauss A [1967] A Discovery of Grounded Theory: Strategies for Qualitative Research Sociology Press 19676 ‘[the researchers] also hope ……that the theory’s implications will have useful application’ Strauss A and Corbin J (1990), Basics of Qualitative Research: Grounded Theory Procedures and Techniques 1990 London Sage

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herself a solicitor but currently employed as an academic. Travel to either Somalia or the

Internally Displaced Persons’ (IDP) camp of Daadab on the border of Kenya and Somalia

was not possible because of security concerns for potential interviewees (both Somalis

and those working in NGOs) as well as the mission personnel. Because of security

concerns, the identities of many of the people whose interviews are included in the report

have been withheld.

The report focuses on events in Mogadishu in 2008 which has been the site of intense

fighting over the last two years, and is home to all the refugees interviewed by the

Mission. In order to carry out the Mission:

Potential Interviewees were identified

A set of questions to ask refugees was agreed between the mission personnel

A broader set of issues to put to NGOs was agreed

A base with available IT facilities for rapid transcription of interviews was found

Due consideration to ethical issues was given. It was agreed that the Barrister could not

participate directly in interviews as to do so would breach the UK Bar’s Code of Conduct 7

1.2 Criteria for selecting Interviewees

Interviewees are in 2 categories: exiled Somalis and personnel employed in non-

governmental/UN/UNHCR or otherwise working in the Somali context. A note of a

meeting with the UN Special Representative to Somalia, Ahmedou Ould-Abdallah is also

recorded.

7 S 401(b) (iii) 8th Edition UK Code of Conduct for the Bar of England and Wales prohibits Barristers from investigating/collecting evidence for use in Court October 2004.

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1.2.a The Somalis

It was not possible to identify any Somalis to be interviewed before the Mission arrived

in Nairobi. The presence of the male Somali interpreter was crucial in making these

contacts. 2 Somali journalists, 1 Sheikhal Loboge elder and 10 members of the Habar

Gedir clan from Mogadishu were interviewed. The latter were targettted as able to give

evidence about the clan’s ability to offer clan protection. The SL elder was also targeted

as one of the Appellants is SL. A considerable amount of time and effort was taken over

his statement.

There was only one woman on the mission who cannot speak Somali, and no female

interpreter so no Somali women were interviewed. The sex, clan background and

original home of the Somalis interviewed were therefore limited to the practical

constraints of the Mission in terms of both its personnel and limited time

1.2.b Members of Non Governmental Organisations (NGOs)

Home Office fact finding missions had been carried out in March and June 2007 with

respect to8 an earlier Somali case before the Asylum and Immigration Tribunal and the

mission was keen to interview the same people, to both establish the veracity of their

earlier accounts and discover whether they considered the situation to have deteriorated

between April 2007 and September 2008 [Moreover the Home Office conducted 2 similar

fact finding missions. They proved very influential with the Tribunal].9. With the co-

operation of the10 Home Office the mission interviewed eight people most of whom had

previously been interviewed by the Home Office. Paul Morris established contact with

Home Office officials to gain access to their sources before the trip.

1.2.c Somali journalists

The Mission interviewed 2 Somali journalists, both of whom spoke good English. One

had previously been interviewed by the Home Office and one had not.

8 HH (Somalia) CG [2008] UKAIT 00028 9 Ronan Toal – response 19 June 200910 See pages 47 – 63 subjective AM and AM bundle

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1.3 Conduct of the Interviews

1.3.a The Somali Interviews

Without the interpreter, Abdi Jama, it is unlikely that the Mission would have been able

to set up any interviews within a week. Thanks to him, detailed Statements from two

Somali journalists and a Sheikhal Loboge elder were taken. The elder was interviewed

extensively over two days in the hotel where some Mission members stayed. 3 members

of the team interviewed 10 members of Habar Gedir clan who had recently arrived in

Eastleigh, Nairobi from Mogadishu. They were willing to give their names. Many of the

interviewees had been active in the Islamic Courts (IC) and had fled Mogadishu after the

Ethiopian invasion of December 2006.11 With the exception of the journalist, three of

the team members interviewed the HG Clan Members at the Barakat Hotel in Eastleigh

with Abdi Jama as an interpreter. The interviews were conducted in one room.

Interviewees were selected at random. Detailed handwritten notes were taken which

were subsequently transcribed and exhibited in the Nairobi bundle.

1.3.b Information Gathering from NGO’s

This style of interview was much more fluid and the mission rehearsed the questions

previously asked of the interviewees by the Home Office. Where possible, informants

signed a Witness Statement prepared shortly after their interview. If they were unwilling

to do so due to safety or institutional reasons the Mission personnel recorded a note of the

conversation,. For example, although Alex Tyrer, Protection Officer for UNHCR was

unable to sign a Witness Statement, he was able to identify himself as the author of that

Statement by providing a business card. Similarly Matt Bryden and Tony Burns were

willing to be identified. It is possible that Matt Bryden and Tony Burns were less

constrained by their institutions: Matt Brydon had recently been appointed as head of the

UN Arms Embargo Monitoring Group, but had not yet taken up the post.

11 See pages 52 – 63 Nairobi Bundle

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1.3.c The Somali Journalists

Of great significance is the testimony of the anonymous Somali journalist because he

disclaimed much of his previous statement given to the Home Office. He does not

however explain the differences in his account of events in Mogadishu. The second

Somali journalist who was not previously interviewed by the Home Office gave a lengthy

interview12 which eloquently details Mogadishu’s descent into chaos after the Ethiopian

invasion. Both journalists give important information for they have a holistic view of the

situation in Mogadishu both as Somalis who have suffered as a due to the conflict, and

journalists whose professional obligation is to remain objective in their reports to the

“outside world”.13

1.4 Fieldwork Issues

The set of questions at page 50 – 51 of the Nairobi bundle were asked to all HG

interviewees. Their answers were transcribed as soon as possible after interview, but

there was insufficient time to return to Eastleigh for the Statements to be signed.

Some of the representatives from NGO’s were interviewed at their offices, some at the

hotel in which the Mission was staying, as were the journalists. 14 The hotel had a

business Conference centre which the mission was able to use for rapid transcription of

interviews.

1.4.a Gaining Trust

The HG interviewees would never have been found, never mind have agreed to give

interviews had it not been for the presence of a Somali interpreter.

12 At pages 21 to 28 of the Nairobi Bundle13 See pages 18 to 28of the Nairobi Bundle 14 See pages 3 -46 Nairobi Bundle

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‘Abdi Jama’s role was critically important. It was he who identified and contacted our

informants from the Somali diaspora. He was ale to convince them of the importance of

what we were doing and so persuade them to assist us’15

They were only willing to answer questions which inevitably produced distress once

Abdi Jama explained that the mission members represented Somali Asylum seekers in the

UK whom the Government was trying to remove to Somalia who might be assisted by

their evidence. At the end of the interviews, formal acknowledgement of thanks was

given by both parties: the Mission thanked the Somalis for their valuable information and

they in turn thanked the Mission for helping members of their diaspora.

1.4.b Verifying research results

Many of the interviewees had much to lose if their participation in the Mission became

known. The HG interviewees agreed to be named as they understood that the

information given would only be disclosed once the Mission returned to the UK. Both

journalists, three humanitarian aid workers and two security advisors were unwilling to

disclose their identities as they feared reprisals. Alex Tyrer, Mohammed Dahla, Tony

Burns and Matt Bryden were willing to be named. Identity was a sensitive issue and all

mission Members were respectful of a desire for anonymity.

1.4.c Interpreter

Abdi Jama, a very well known and respected member of the Somali community in the

UK was absolutely key to the success of the mission. Without him no Somalis would

have been willing to be interviewed. He is an extremely experienced interpreter with

many years experience in translating complex law and distressing personal experiences.

15 Ronan Toal response to questions 19 June 2009

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1.5 Choice of questions

1.5.a Questions to Somalis

The questions at pages 50 to 52 of the Nairobi Bundle were put to all the HG’

interviewees who recently fled the armed conflict. The open questions are designed to

identify whether the extent to which they think clan membership can protect them from

indiscriminate attacks leading to loss of civilian life and property.

1.5.b Questions to Participants

A final set of questions concerning the reasons for and the usefulness of the Mission was

put to the six mission participants: extracts from their responses are included in the paper.

(see Appendix 2)

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2 THE CURRENT CONFLICT IN SOMALIA

2.1 Introduction

In December 2008 two months after the hearing in AM and AM, Human Rights Watch

published an extensive report which describes Somalia ‘as a nation in ruins, mired in one

of the world’s most brutal armed conflicts of recent years’16 It reinforces all the points

put to the Asylum and Immigration Tribunal in AM and AM just two months earlier in the

Nairobi Bundle. The report catalogues the threat to life and livelihood of millions of

Somalis by the violent chaos triggered by the Ethiopian invasion in December 2006.

South Central Somalia and Mogadishu are so dangerous that no international NGOs

remain there, foreign journalists hardly ever venture there and there is scarce media

coverage of the ravages of the on-going internal armed conflict.17

2.2 The Clan System

Somalia has not experienced stable government since the collapse of the military

dictatorship of the Supreme Revolutionary Council headed by Mohammed Siyaad Barre

in January 1991. There is a complex clan system in Somalia with seven major clans, and

many sub-clans. Barre was a member of the Maharaan sub-clan of the Darood from the

South, and he was defeated by a coalition of Isaaq and Haawiye clans from North and

Central Somalia. Barre harnessed the support of minority clans by establishing them in

positions of authority throughout his administration in the courts, the police, the schools

and the hospitals18. After almost 20 years of violent conflict, clan protection previously

afforded to minority groups no longer exists as Matt Bryden describes19.

16 Human Rights Watch December 2008 ‘So much to Fear: War Crimes and the Devastation of Somalia.17 ‘In South Central Somalia human life is cheaper than cows and goats’. Interview with Somali journalist para 11, p 23 Appendix 118 Pettifer W [2003] Secondary Migration Experience: Somali Refugee Women Moving from Holland to the UK19 ‘clans are no longer able to provide the level of protection or support that they used to…..or the degree of control over the use of the means of violence that they did even up to the time the IC took control of Mogadishu in 2006. Bryden M, Nairobi Bundle Sep 2008 p12

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2.3 Recent History

Somaliland in the North of the country declared itself to be a Republic in 1991 and the

new Puntland state was established in 1998. A fragile peace has therefore been

established in both these areas although they are both currently threatened by the growth

of the number of pirates around Afgol20. However, the situation in South Central Somalia

and Mogadishu has deteriorated to such an extent that the Somalia diaspora today

numbers over 2 million21 world wide in addition to an estimated 1.4 million internally

displaced persons22.

In Mogadishu during 2005 and 2006 a local association of mainly moderate Islamic

clerics, many of whom are HG23 based on Islamic courts (IC) gradually ousted criminal

warlords and re-established law and order for the first time since 199124 clan. The air and

sea ports became safe to use and public utilities were re-opened. By June 2006 life in

Mogadishu returned to something resembling normality and ‘ordinary citizens found it

safe to go about their business on the streets of Mogadishu without fear of attack or

molestation’.25

2.4 The Ethiopian Invasion – December 2006 to the present

However, the US Government of George W Bush perceived the IC as harbouring

terrorists and threatening the Transitional Federal Government (TFG)26, who are feared

20 Andrew Harding, BBC Radio 4 interview 13th June 2009 “the Pirates of Puntland”21 Estimated global number of Somali Refugees worldwide – 2 million Lewis I M Understanding Somalia and Somaliland pub Hurst Publishers 2008 p 8822 UNHCR 2008 Global Trends: Refugees, Asylum Seekers, Returnees, Internally Displaced and Stateless Persons June 2008 23 Habar Gedir were until recently a strong sub clan part of the larger Haawiye clan with a large military presence24 General Mohamed Farrah Aidid is the leader and Habar Gedir clan member who ousted Siad Barre in 1990.25 I Lewis, Ibid 2008 p8826 The TFG are the present government of Somalia recognised internationally. They are ineffective and had virtually no power until the Ethiopian invasion of December 2006 when the popular ICs were overthrown.

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and loathed by many residents of Mogadishu27. Supported by the EU, the US therefore

provided political and material support to the violent Ethiopian invasion of Mogadishu in

December 2006 which wrested control of the city from the IC. The Mission interviewed

the current UN Special Representative of the Secretary-General for Somalia, Ahmedou

Old Abdallah. Although he has consistently called for an end to human rights abuses on

all sides, he does support an initiative for donor funds to pay and equip the TFG police,

which indicates a lack of impartiality to Somalis.

Challenged by insurgents, members of the IC and others, the Ethiopians attacked civilian

quarters of the city, their intervention created a power vacuum with the destruction of the

ICs, leading to the upsurge of Al-Shabaab28 and other insurgent groups supported by

Islamists from outside Somalia29. Up to half a million civilians are estimated to have fled

Mogadishu in early 200730. There were at least two US air strikes on Somalia in 2008

aimed at killing insurgents, but also killing civilians.31 lex Tyler at page 6 documents

killings of civilians in April, July and August 2008. It is his view that no-one should be

returned to South/Central Somalia. At pages 13 to 17, a Somali Aid Worker describes

how he had to32 leave Somalia in June 2008 as he was no longer safe, after the death of 2

Somali workers for an Italian NGO on 30th June 2008.

“Since January 2007 at least 870,000 civilians have fled the chaos in Mogadishu alone. Across South/Central Somalia 1.1 million Somalis are displaced from their homes. Hundreds of thousands of displaced people live in squalid camps along the Mogadishu-Afgooye road that have themselves become theatres of brutal fighting…… At least 29 humanitarian workers have been killed in 2008”

27 Interview 7 p 58 Subjective Bundle (The TFG …opened fire with AK47. I fell to the floor covered in blood and they left believing I was dead”.28 Al Shabaab (The party of youth) is the most powerful Islamic insurgent group in Mogadishu. They include members of the IC who lost control in early 2007. They attack both TFG and Ethiopian forces and are perceived by some Western Governments to be terrorists.29 BBC News “Al Shabaab infiltrated by foreign terrorists” 4 July 200930 Human Rights Watch Shell shocked 200731 Jennifer Daskal and Leslie Lekfow ”Off Target: when missile strikes at alleged terrorists go awry” Los Angeles Times, March 28 200832 Human Rights Watch So Much to Fear War Crimes and the Devastation of Somalia Dec 08 p 19

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The internally displaced persons (IDPs) withdrew southwards through Kismayu into

Kenya33 and others to grim camps on the roadside, to Puntland and Somaliland. The

Ethiopian troops left in Spring 2009 as actual international military support failed to

materialise and the troops became increasingly both out of control and under pressure.

33 See Somali Statements in Subjective bundle pps 19-20

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3 INTERNATIONAL LAW

The question before the Tribunal in AM and AM is whether the forced return of failed

asylum seekers to Somalia presents a real risk of harm as defined by Article 3ECHR due

to a situation of internal armed conflict in Somalia.

3.1 Risk of treatment contrary to Article 3 ECHR

The right not to be tortured or subjected to inhuman or degrading treatment contrary to

Article 3 ECHR is an unqualified right and can never be balanced or give way to

competing considerations34 and it has been established that such risk may be engaged by

extradition or expulsion of rejected asylum seekers from the UK. In the important case of

Soering35 the court held that the extradition of a US citizen to the US where he faced the

death penalty engaged Article 3:

“as [the death penalty] was a foreseeable consequence of extradition suffered Outside the [UK} jurisdiction

and this principle was extended to a situation of such extreme violence that simply

exposing an individual to such violence on return to their county of origin could engage

Article 336

Article 15© of the Qualification Directive37 defines one kind of serous harm as a:

“serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”

The ECHR has confirmed that the content of Article 15© differs from that of Article 3

ECHR38 but has never precisely ‘identified the scope of additional protection’.39 The

European Court of Justice in Elgafaji40 distinguished between different types of harm in 34 Macdonald IA, Toal R Macdonalds Immigration Law and Practice: 1st Supplement to 7th Edition [2008] London: Lexis Nexis35 Soering v UK [1989] 11 EHRR p 43936 NA vUK [2008) ECHR 61637 Council Directive 2004/83/EC38 Elgafaji v Staatsecretaris van Justitie [2009] Case C-465/07 ECJ)39 Macdonald and Toal ibid p 3840 Elgafaji ibid

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Article 15 by stating that Articles (15 (a) and (b) refer to ‘a particular type of harm’ and

Article 15 (c) protects against a threat of general harm. Therefore it can be said that

Article 15 (c) protects against a lesser form of harm, or lesser likelihood of a specific

form of harm. Article 3 may therefore be breached by the forced return of a failed

asylum seeker which would result in their presence in the situation of extreme

generalised violence which can exist in a situation of internal armed conflict41.

3.1 Internal Armed Conflict

The conflict in South Central Somalia and Mogadishu is considered a non-international

(or internal) armed conflict.42 This is because there is no effective state which functions

in the area and fighting at the time of the decision in AM and AM was between the

Ethiopian armed forces43, (perceived as acting on the invitation of the TFG) the TFG and

a number of insurgent groups of which Al- Shabaab is the easiest to identify.

International humanitarian law is therefore applicable and requires all groups to respect

and protect civilians and prisoners. It further prohibits indiscriminate attacks which have

no defined military objective44 and attacks where civilian casualties are disproportionate

to damage inflicted on a military target. Parties to a conflict should minimize the

incidental loss of civilian life and damage to civilian property45 and civilians should not

41 NA vUK [2008] ECHR 61642 The Hague Regulation (1907) and the First and Second Additional Protocols (1977) to the Geneva Conventions (Protocol 1). Protocol 1 provides codification of the conduct of hostilities during international armed conflicts, but is not directly applicable to the internal armed conflict in Somalia. The Second Additional Protocol to the Geneva Convention is not directly applicable to Somalia because it is not party to the protocol. However, in this situation, customary law is relied on as a codification for the principles of the conduct of hostilities and is largely the same as international humanitarian law.43 June 14 2006 the Somali Parliament voted for the deployment of African Union Troops “no matter what country they are from” IRIN News June 15 200744 Article 48 Protocol 1 “parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives”45 Article 52(3) Protocol 1

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be used as human shields.46 Violation of the international law on armed conflict by one

side does not justify responsive violations by another side. Humanitarian law also

prohibits murder, mutilation, torture, inhuman and degrading treatment rape and sexual

violence.47

3.2 The Mission Findings

Every party in the armed conflict in Somalia has committed serious violations of

international humanitarian law, with impunity as evidenced in the Statements obtained

during the Mission. The Statement of a Somali Journalist at pages 21 to 28 provides

evidence of many such breaches. At page 23 he describes how he frequently had to hide

in his hotel basement between April and June 2008 to avoid shelling. Very often,

civilians have no idea which party is responsible for such attacks. They impose a curfew

on themselves and no-one is out after dark. The families of children and young men who

are targeted as recruits by Al Shabaab have to flee their neighbourhoods. At page 27 the

journalist describes how Al Shabaab shot dead two people merely because they were near

a graveyard where an Al Shabaab member was buried.

Interviewee 5 at page 56 tells how he was targeted for attack by both the TFG and and

father were shot dead by either the TFG or Ethiopians and how he managed to escape

insurgents so that he had to flee to Kenya. Interviewee 8 at page 61 tells how his niece to

Kenya after a stay in the Medina Hospital and a perilous journey.

The Sheikhal Loboge elder tells how most of his clan are now in Daadab and Haragdhere

Refugee camps. The evidence collected during only a week demonstrates daily breaches

of international humanitarian law by all parties which would represent a real risk of harm

to any ‘failed’ asylum seekers forcibly returned from the UK.

46 Articles 57 and 58, Protocol 147 Article 3, common to the four Geneva Conventions of 1949 is binding on all parties to a non-international armed conflict. Both Somalia and Ethiopia are parties to the Geneva conventions.

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4. THE DECISION IN AM AND AM48

4.1 The Asylum and Immigration Tribunal (AIT)

The Asylum and Immigration Tribunal (AIT) is the first tier national Appellate

Immigration Court in the UK. Immigration Court Judges can designate cases of

particular significance to be country guidance cases if thought to be relevant to large

numbers of migrants from a particular diaspora. Such cases are usually heard by a panel

of three senior Immigration Judges and are in effect ‘test cases’ whose decisions are

applicable to all individuals in the UK who are nationals of a particular state (in this case

Somalia). Appeals on a point of law are initially by way of request for a reconsideration

by filter through the High Court49. If the High Court considers there is sufficient merit in

the re-consideration request, the case is remitted back to a different panel of Judges of the

same level of seniority as the original decision makers50. Only one request for paper

reconsideration is allowed and any subsequent appeal is directly to the Court of Appeal.

If reconsideration is negative, permission of either the Tribunal or, if refused, the Court

of Appeal to appeal the reconsideration decision must be granted before an appeal to a

higher court can proceed.51 Should a remittal request be refused, an appeal against that

decision is to the Court of Appeal 52

Because the Tribunal needs to have a full picture to contextualise any risk of harm on

return, expert and Country Guidance evidence is particularly important and reasons

should be given for the preference of evidence of one expert over another.53

4.2 The ratio in AM and AM

48 AM &AM (armed conflict :risk categories) Somalia CG [2008] UKAIT 0009149 S103(A)(1) Nationality and Immigration Asylum Act 2002 (NIAA 02)50 S103(A)(2)(b) NIAA0251 S103(B)(3) NIAA0252 S103E Immigration and Asylum (Treatment of Claimants) Act 200453 Vasikaran (15241) 14 July 1997 unreported IAT

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The question of the nature and effect of the risk of harm presented to returnees by the

conflict in Somalia has vexed the UK courts for a decade. In 1998 the House of Lords in

the case of Adan54 decided that the nature of the conflict in Somalia at that time where

“law and order has broken down” would not automatically lead to refugee protection

because civilians caught in the crossfire between armed groups will not normally face

anything other than the ordinary incidents of civil war. The ratio does contain a proviso

that decision makers should not reject every claim per se. The decision in AM & AM

reflects developments in international humanitarian law over the past 10 years and the

broadening of the categories of civilians who may be at risk of indiscriminate violence

during “war”55 to expand the definition to, within certain parameters, that of internal

armed conflict. It acknowledges that the situation in Southern Somalia since the

Ethiopian invasion of Somalia has become analogous with internal armed conflict within

the meaning of international humanitarian law, that clan protection is weakened and the

threat to civilians has therefore increased.

The UK courts acknowledged in 200856 that circumstances have changed since

December 2006. The previous country guidance case of HH held that an armed

conflict as defined by international humanitarian law was confined to Mogadishu and its

environs. However, instead of applying the Article 15 © test as defined by the ECJ that a

lesser risk of harm or risk of a lesser form of harm should engage Article 3, the Tribunal

established a differential impact test57 Expert evidence for the Appellants to the contrary

was discredited by the Tribunal’s selective reliance on evidence obtained by two Home

54 Adan [1998] 2 WLR 70355 Article 15© European Convention on Human Rights ibid56 HH and others(M Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 0002257 HH ibid para 331, KH (Iraq) CG [2008] UKAIT 00023

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Office Missions to Nairobi in March and June 2007, hence the decision to undertake the

mission which is the subject of this paper58

The Tribunal found that there had been significant changes since HH in central/southern

Somalia and Mogadishu, and that civilians in Mogadishu are at risk of significant harm

due to the internal armed conflict in the whole area as defined by international

humanitarian law. This expands the geographic area in which an internal armed conflict

is acknowledged to exist for UK legal purposes from that of Mogadishu to that of

Mogadishu and the surrounding area of Southern Somalia. They also found, with

specific reference to the evidence of the Sheikhal Loboge elder that the Sheikh Loboge

clan are no longer able to offer clan protection.

“we consider ….the Sheikhal clan (including the Sheikhal Loboge) by virtue of the hostile attitude towards them …..is less able to secure protection for its members than previously”

However, somewhat contradictorily, the judges considered that an internally displaced

person whose home is outside Mogadishu will not automatically be considered at risk,

and will need to provide precise evidence to show a real risk of persecution. It decided

that AM1, who is a Bantu59 and comes from Jowbar (outside Mogadishu) had not

established a real risk of persecution, serious harm or treatment contrary to Article 3 and

dismissed his appeal. AM2 is from the minority sub clan of Sheikhal Loboge. The

Tribunal accepted the definition of Sheikhal in the previous Country Guidance case of

FK60 as:

“The Sheikhal are not one but several groups not necessarily related, and with different cultures and dialects. The word is simply the plural of Sheikh and signifies the lineage who have an inherited religious status. They all trace descent from the same ancestor Sheikh Faqi Cumar who travelled around Somalia and married wives in each location”

58 ’ in the previous country guidance case the expert witnesses used had been trashed by the Court. Their years of knowledge and experience of Somalia was insultingly belittled. Conversely the Court set great store by the Home Office “fact finding mission”. P Morris, Manchester Law Centre, 12 June 200959 Bantus in Somalia are people who were forced to come from other parts of Africa, sometimes as slaves. They have very low status.60 FK (Sheikhal Gandershe) Somalia CG [2004]UKIAT 000124

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AM2 is from Mogadishu and left Somalia as a minor, and the Tribunal found he would

face a real risk of persecution, serious harm and treatment contrary to Article 3 ECHR

should he be returned to Mogadishu, and allowed his appeal.

Permission to appeal was refused by the Tribunal to AM1 who is awaiting the outcome of

an application for permission to appeal filed with the Court of Appeal.

4.3 Weight given to the evidence obtained by the Mission in AM and AM 61

In the introduction to the determination and reasons of the Judgement at page 5 the

Tribunal notes the great care that both parties have taken to prepare for the appeal and

records its gratitude for the high quality of the country background materials.

Paragraphs 145 to 149 deal with “the Intensity of the Violence” and significant weight is

placed on the evidence of Alex Tyler, UNHCR Protection Officer 62 that the citizens of

Mogadishu are experiencing the worst violations of international human rights and

humanitarian law since the conflict started. At paragraph 157 the Tribunal refers to the

dreadful situation in IDP camps as described by the Somali journalist in the Nairobi

bundle63. In the conclusion of the determination at paragraphs 159 and 160 further

references are made to the Statement of Alex Burns with regard to the risk of extortion

and abduction that a returnee would face due to the common perception of their relative

worth and the fracturing of clan loyalties, particularly if they have been away from

Somalia for a significant period of time.64 A single reference is made to the evidence of

the Habar Gedir at paragraph 166 in relation to their inability to protect themselves

against the Ethiopians and the TFG.

61 Referred to in AM and AM as ‘the Nairobi Evidence’62 Tyler A, “there is a clear correlation between the massive displacement from Mogadishu and the above mentioned military operations in civilian areas, estimated at 700,000 in 2007 alone, indicating that the conflict between the TFG and Ethiopian forces and the insurgents has been conducted with little regard for the safety of the civilian population” p 4 Nairobi evidence Sep 09

63 “people from IDP camps are suffering from trauma and malnutrition64 Tyler, A “persons perceived as wealthy are attractive targets for robbery or abduction – returnees would certainly attract attention and be assumed to have money” pps 7 8, 27 and 36 Nairobi evidence Sep 09

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It does appear therefore that, in part due to the Nairobi evidence, the Tribunal agrees that

recent events have changed the situation in Mogadishu. They accept this to be the case

both with regard to the reduced possibility of clan protection, the extensive population

displacement away from the city and the intensity of fighting. At paragraphs 169 and 170

the Tribunal considers the evidence of the Sheikhal Loboge elder. They describe his

Witness Statement as “a measured thoughtful analysis” which adds weight to the case

that members of that sub clan have become less able to secure protection, particularly

against Al Shabaab.

The Tribunal considers that

“Mogadishu is no longer safe as a place to live for the great majority of its citizens”65

and, with reference to the evidence of the Sheikhal Loboge elder conclude that clan

protection is no longer available to AM2’s clan. Reliance is also placed on Mr. Tyler’s

comments about the need for any traveller to have a protective militia escort and the

failure of the TFG to create a secure environment which would obviate such a need.66

Reference is also made to the statement of Tony Burns that ‘looting, rape, extortion and

murder are commonly carried out by all parties to the conflict’ and note is taken of his

comments that all checkpoints in and around Mogadishu International airport are

operated for profit, with a risk of murder for those who will not/cannot pay bribes67.

Further brief references are made to the evidence of the two international aid workers and

the anonymous Somali journalist.

The only reference made to the evidence of the Eastleigh interviewees is at paragraph 163

so the mission’s hope that their evidence would be persuasive on the question of

generalised lack of clan protection was not met.

65 AM & AM ibid para 17866 Tyler A p14 ibid67 Burns, T p 37 Nairobi evidence Sep 09

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