APPEAL No. FA (Somali Bajuni female at risk) Somali [2004] UKIAT 00106
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 26 April 2004
Date Determination notified: 17 May 2004
Before
Miss K Eshun (Chairman)
Dr J O de Barros
Between
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APPELLANT |
| and |
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| Secretary of State for the Home Department |
RESPONDENT |
For the Appellant Dr M Abraham, Counsel instructed by Mangala & Co, Solicitors
For the Respondent: Mr J Morris, Home Office Presenting Officer
DETERMINATION AND REASONS
- The Appellant, a citizen of Somalia, appeals with leave of the Tribunal against the determination of an Adjudicator (Mrs C M Horden-Beal) dismissing her appeal against the decision of the Respondent made on 3 May 2003 to refuse her asylum and leave to remain in the United Kingdom.
- The basis of the Appellant's claim was that she feared persecution because she was from the Bajuni clan, and also sought international protection to allow her to stay in the United Kingdom and care for her sister's children.
- She claimed that she was born in Kismayo in Somalia on 19 October 1975 to Somalian parents. She left Somalia at the age of 6 and went to live in Kenya with one of her father's Somali relatives who had no children of her own who had asked if she could raise the Appellant. She lived with this lady whom she called aunty and her husband until she came to the United Kingdom in January 2003 to care for her dying sister. She had no contact with her sister who had remained in Somalia or with her sister's children until her sister sent an agent to the Bajuni community in Mombassa to find her and take her to the UK to care for her. Her sister died within a week of the Appellant's arrival in the United Kingdom and the Appellant claimed that she had been caring for her late sister's two children ever since with the help and support of Coventry Social Services.
- Her sister came to the United Kingdom five years ago with her eldest child Zeyana. She was granted indefinite leave to remain and since then her youngest child, Barke was born. At the hearing before the Tribunal, Counsel showed us British passports for the two children.
- The Adjudicator accepted that the Appellant is from Somalia and is from the Bajuni tribe. She was however not satisfied from the objective evidence that persecution based upon the Appellant's ethnicity alone is now very unlikely in Somalia. On the facts of the case, she did not find that the Appellant has a well-founded fear of persecution based upon her ethnicity.
- The Adjudicator then went on to dismiss the Appellant's appeal under Article 8 of the ECHR.
- When granting leave to appeal, Mr Moulden, Vice President, said it was arguable that the Appellant is entitled to succeed on Article 3 grounds if not on Refugee Convention grounds as well because of the Adjudicator's finding that she is a Somali citizen of the minority Bajuni tribe or clan. It was also arguable that the claimant does have a family life in the United Kingdom with her late sister's children for whom she now appears to be the only carer. Her late sister had been granted ILR and presumably the children in line with her. As already indicated above, the two children are now British citizens.
- Mr Morris conceded, in the light of the Home Office Operational Guidance Note on Somalia of February 2004 Version 5 that anyone from the Bajuni tribe is at risk of persecution. Furthermore, the Appellant being a woman, would be particularly vulnerable and could not relocate within Somalia.
- The particular paragraph of the Operational Guidance Note Mr Morris relied on is 3.73.2 which states:
"Sufficiency of protection/Internal relocation
Those minority groups that are "politically and economically" the weakest, including the Bajuni, are least able to secure protection from extortion, rape and other human rights abuses by criminal elements of more powerful clans and are somewhat vulnerable to persecution wherever they reside. Internal relocation would not be a reasonable option for those claiming to be a member of the Bajuni group.
AJH (Somalia) [2003] UKIAT 00094 Promulgated 03/10/03. Persons of Bajuni or Bravanese ethnicity are likely to face persecution and cannot reasonably relocate, particularly if they are female."
- In the light of the above information, the Adjudicator's decision that the Appellant does not have a well-founded fear of persecution based upon her ethnicity cannot stand.
- In the circumstances the Tribunal saw no purpose in considering the challenge to the Adjudicator's findings on Article 8.
- Accordingly, the Appellant's appeal is allowed.
MISS K ESHUN
CHAIRMAN
