[New search]
[Context]
[Printable version]
[Help]
MS Somalia [2002] UKIAT 06698
HX 14176-02
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 27 November 2002
Date Determination notified: 23 February 2003
Before
Mr P R Moulden (Chairman)
Mr M. Shrimpton
Mr A. F. Sheward
Between
MS |
APPELLANT |
and |
|
Secretary of State for the Home
Department |
RESPONDENT |
DETERMINATION AND REASONS
- The Appellant is a citizen of Somalia. She has been
given leave to appeal the determination of an Adjudicator (Mr M. A. Khan)
dismissing her appeal against the Respondent's decision to give directions for
her removal from the United Kingdom and to refuse asylum.
- Mr P Anim-Addo of Council instructed by Develmi
& Co, Solicitors, appeared for the Appellant. Mr C. Buckley, a Home Office
Presenting Officer, represented the Respondent.
- The Appellant arrived in the United Kingdom on about
16 July 2001. She claimed asylum on 20 July. The notice containing the
decision against which she appeals is dated 31 October 2001. The Adjudicator
heard the appeal on 13 May 2002 and leave to appeal was granted on 17
September 2002.
- The Appellant claimed to fear persecution and
infringement of her human rights in Somalia because of her membership of a
minority sub clan. She said that she and her family were attacked, beaten up,
tortured and their belongings destroyed or looted. The Adjudicator found that
she was not a credible witness. Whilst accepting that she was a citizen of
Somalia, he did not accept that she belonged to a minority clan or that she
and her family had suffered as claimed. He concluded that she had not
established a well-founded fear of persecution for a Convention reason or that
her human rights were likely to be infringed. The first of the two grounds of
appeal does no more than repeat the claim that the Appellant has a
well-founded fear of persecution in Somalia. However, at the hearing Mr
Anim-Addo pursued only the second grounds of appeal under Article 8.
- In relation to Article 8 the Adjudicator found that
the Appellant had spent only a short time with her siblings in the United
Kingdom. She had spent most of her life with first her parents and then her
uncle and his family in Somalia. After her siblings left Somalia she did not
know where they were and they did little to find out where she was or what was
happening to her. The Appellant has two brothers in the United Kingdom who are
British citizens and a sister who has indefinite leave to remain. She is
living with her younger brother. The Adjudicator found that the period spent
with her siblings in the United Kingdom was very short and that she had not
established a family life with them. Article 8 was not engaged and would not
be breached by her removal to Somalia.
- We have no documents from the Appellant's
representatives although, during the hearing, we allowed Mr Anim-Addo to
submit a copy of page 8.57 of the fifth edition of Macdonald. The Respondent
submitted copies of two decisions of the European Commission of Human Rights,
S and S v United Kingdom delivered on 10 December 1984 and Advic v
United Kingdom delivered on 6 September 1995.
- Both representatives accepted that we could repair
any defects in the Adjudicator's determination and it was not necessary to
remit to him or another Adjudicator.
- Mr Anim-Addo submitted that the Appellant did not
have a family life in Somalia. She had a lifelong relationship with her
siblings and it was not likely that she could establish a family life on her
own or with them in Somalia. He submitted that she was a member of a minority
clan and persisted in the submission after we pointed out that the Adjudicator
had concluded otherwise. He accepted that the Appellant and her siblings were
likely to belong to the same clan or sub clan but argued that the Adjudicator
should have made specific findings with regard to her siblings, not just the
Appellant.
- We asked Mr Anim-Addo if he wished to address us on
proportionality. In doing so he did no more than rely on the judgment of the
Court of Appeal in Mahmood and said that it would be extreme to remove
the Appellant.
- Mr Buckley took us to Advic and submitted
that on this authority the Appellant did not have a family life with her
siblings in the United Kingdom. She had lived in the United Kingdom for a very
short period. At the date of the Respondent's decision she had been in the
United Kingdom for 2 or 3 months. There had been no contact between her and
her siblings after they left Somalia. There was no evidence of dependency
beyond normal ties between siblings. He submitted that Article 8 was not
engaged. There was no evidence of how her siblings had achieved British
citizenship or indefinite leave to remain. There was no evidence of
insurmountable obstacles to any of them returning to Somalia. He submitted
that there would be no interference with family life but, if we were against
him, on all the evidence it would, in the interests of immigration control, be
proportionate to return her to Somalia.
- In reply Mr Anim-Addo said that there were
insurmountable obstacle to her return but did not specify what they were. Her
siblings could not go and live with her in Somalia.
- The passage in McDonald's relied on by Mr
Anim-Addo states, "Generally, relationships between adult siblings or adult
children and their parents will not fall within the scope of Article 8, but in
each case it is a question of fact whether there exists ties strong enough to
constitute family life within the meaning of the Article. Whether a
relationship amounts to "family life" depends on the substance as much as
form; so informal heterosexual relationships of sufficient substance and
stability have been classified as "family life", although stable homosexual
relationships have not."
- In Advic the Commission said,
"Nevertheless, in accordance with the Commission's case law, the exclusion of
a person from the country in which his close relatives reside may raise an
issue under Article 8 of the Convention. However, in examining cases of this
nature the Commission's first task is to consider whether a sufficient link
exists between the relatives concerned to give rise to the protection of the
Article of the Convention. Although this will depend on the circumstances of
each particular case, the Commission has already considered that the
protection of Article 8 did not cover links between adult brothers who had
been living apart for a long period of time and who were not dependent on each
other. Moreover, the relationship between a parents and an adult child would
not necessarily acquired the protection of Article 8 of the Convention without
evidence of further elements of dependency, involving more than the normal
emotional ties".
- In the circumstances we find that the Adjudicator
was right to conclude that the Appellant had not established a family life in
the United Kingdom with her siblings. They had lived apart, she in Somalia,
they in the United Kingdom, for a considerable time, without any contact.
After her arrival in the United Kingdom and at the date of the decision she
had resumed contact and lived with one of her brothers for only some three
months. There is no evidence of any greater dependency. Apart from any
inference which may arise purely from the fact that she is living with her
brother, there is no evidence of dependency involving more than the normal
emotional ties. On the evidence before him and the same evidence before us the
Adjudicator was entitled to conclude that the Appellant had not established a
family life with her siblings in the United Kingdom.
- If we were wrong in this then to return the
Appellant would be an interference with family life. It would be in accordance
with the law. We find that it would be proportionate to a legitimate aim. We
have no evidence that the Appellant's siblings could not travel with her to
Somalia or visit her there. The facts, which we accept, are that the two
brothers are British citizens and her sister has indefinite leave to remain.
They have not established how they achieved such status, that they are
refugees or, even if they were refugees, that there is still some reason why
they cannot go to Somalia. Mr Anim-Addo accepts that the Appellant and her
siblings are likely to belong to the same clan and sub clan. In circumstances
where the Adjudicator found that the Appellant did not belong to a persecuted
minority clan there was no need for him to make separate findings about her
siblings. On all the evidence, had it been necessary for us to do so, we would
have concluded that it would be proportionate to return the Appellant to
Somalia.
- For these reasons we dismissed this appeal.
…………………………………….
P. R. Moulden
Vice President
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKIAT/2003/06698.html