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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> STARRED MY (Disputed Somali nationality) Somalia [2004] UKIAT 00174 (02 June 2004) URL: https://www.bailii.org/uk/cases/UKIAT/2004/00174.html Cite as: [2004] UKIAT 00174, [2004] Imm AR 359, [2004] UKIAT 174 |
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APPEAL No. MY (Disputed Somali nationality) Somalia * [2004] UKIAT 00174
Date of hearing: 15 December 2003
Date Determination notified: 02 June 2004
MY | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
Introduction
"… even to the lower standard the Appellant has not established that he is of Somalian Nationality but on the evidence before me I have not been able to draw any conclusions as to his correct nationality.
"Bearing in mind my findings as to the Appellant's credibility and that he is not of Somalian Nationality I did not find that he has established that he is a refugee within the meaning of the Refugee Convention. Nor do I find that there are substantial grounds for believing his evidence with regard to the human rights aspect of the matter. That is not at all to say that I believe that the Appellant should be returned to Somalia. Such a course would be quite wrong as he is not a national of that country, the more so bearing in mind the objective evidence relating to the conditions there."
The Statutory Provisions
"69(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the Convention.
(5) If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom, he may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to the convention."
"65 (1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, racially discriminated against him or acted in breach of his human rights may appeal to an adjudicator against that decision … ."
(5) If the adjudicator, or the Tribunal, decides that the authority concerned
(a) racially discriminated against the Appellant; or
(b) acted in breach of the Appellant's human rights,
the appeal may be allowed on the ground in question."
"66(1) This section applies if directions are given for a person's removal from the United Kingdom-
(a) on the ground that he is an illegal entrant;
(b) under section 10; or
(c) under the special powers conferred by Schedule 2 to the 1971 Act in relation to members of the crew of a ship or aircraft or persons coming to the United Kingdom to join a ship or aircraft as a member of the crew.
(2) That person may appeal to an adjudicator against the directions on the ground that on the facts of his case there was in law no power to give them on the ground on which they were given.
(3) This section does not entitle a person to appeal while he is in the United Kingdom unless he is appealing under section 65 or 69 (5)."
"21(1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers-
(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or
(b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,
but otherwise must dismiss the appeal.
(2) Sub-paragraph (1) is subject to paragraph 24 and to any restriction on the grounds of appeal."
"If a person in the United Kingdom appeals under section 59 or 69(1) on being refused leave to enter, any directions previously given by virtue of the refusal for his removal from the United Kingdom cease to have effect, except in so far as they have already been carried out, and no directions may be so given while the appeal is pending."
There is a suspensory provision in paragraph 20 in relation to section 65 appeals.
"(i) a country of which he is a national or citizen; or
(ii) a country or territory in which he has obtained a passport or other document of identity; or
(iii) a country or territory in which he embarked for the United Kingdom; or
(iv) a country or territory to which there is reason to believe that he will be admitted."
The Submissions
Conclusions
"We firmly take the view that an Appellant cannot be heard to claim, for the purposes of his asylum appeal, that he comes from a particular country and, in the same proceedings, for the purposes of s 66, that he does not come from that country. That should be sufficient to deal with any cases in which, in the same appeal, an Appellant claims that he is from a particular country but, if the Adjudicator does not believe that, then he claims for the purposes of an appeal under s 66 that he is not from that country. To do so is simply an abuse and we will not tolerate it. It follows that an appeal under s 66, based on the falseness of the information given for the purposes of any other grounds of appeal in the same appeal, will not succeed."
"Now that enables a person, in respect of whom appealable removal directions have been given, to say not only that he is a refugee but also that there was no power to give the directions on the facts of his case. What he is not entitled to do is to blow hot and cold and say "On the facts of my case, I am a national of country A and I cannot be returned to country A because it would be contrary either to the Refugee Convention (s 69(5)) or the Human Rights Convention (s 65). But, if you, the Adjudicator, decide that I am not a national of country A, then the removal directions cannot stand because, on the facts that you have then found, there would be in law no power to give them on the ground on which they were given."
"In our view, because, like Mr Varcoe, we do not believe that Parliament could have intended an individual to rely on his own fraud to obtain an advantage, s 66(2) must be construed to mean that the facts of his case mean the facts asserted by the Appellant in support of his appeal. That is to say that the Appellant is entitled to appeal under s 66(2) if, and only if, he asserts facts which mean that there was in law no power to give the directions on the ground on which they were given. If he fails to establish those facts, he claim will fail."
The Interview
"Whilst it does appear to me to be advisable for there to be an independent interpreter present at interview I would need the most compelling reasons to be prepared to discount an interview entirely. I note that no formal complaint was made by the Appellant or his representatives concerning the conduct of that interview, the Appellant signed the record and answered the usual questions indicating that he understood the interviewer and was able to proceed. When he stated that he was unwell the first session of the interview was terminated. I appreciate that an interview given at the end of a long flight in strange circumstances and particularly when the interviewee may be uneducated is a gruelling and demanding experience. I bear that in mind in considering the contents of that initial interview but I do not think that it would be proper to discount it altogether. On the whole the Appellant's answers do follow logically from the questions put. Considering that interview I do not regard it as of any particular significance that the Appellant did not know details about such matters as the population and even capital city of Somalia. What I did find very surprising was that he was not able at that initial interview to name his own clan but only to say that he came from Kismayo. It is also surprising that he was not able to give an indication as to when the attack upon his home had occurred. It is even more surprising that the Appellant was not aware of the Somalian currency."
MR JUSTICE OUSELEY
PRESIDENT