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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> DM (Majority Clan Entities Can Protect) Somalia [2005] UKAIT 00150 (27 July 2005) URL: https://www.bailii.org/uk/cases/UKIAT/2005/00150.html Cite as: [2005] UKAIT 150, [2005] UKIAT 00150, [2005] UKAIT 00150 |
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DM (Majority Clan Entities Can Protect) Somalia
[2005] UKAIT 00150
Date of hearing: 24 May 2005
Date Determination notified: 27 July 2005
DM | APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
"Insofar as the grounds challenge the [Adjudicator's] adverse credibility findings, I consider that the [Adjudicator] gave sound reasons for concluding that the [Claimant] had failed to give a credible account of her past experiences or of being a member of a minority clan. The [Adjudicator's] limited acceptance at para 29 that the [Claimant] may have suffered from violence inSomalia
and her father killed as described was not sufficient to show that she had experienced past persecution or ill-treatment personal to her. Plainly, the [Adjudicator] considered that what she had suffered from in the past was generalised, as distinct from targeted violence and had not suffered it by virtue of any minority clan identity.
Insofar as the grounds contend that the [Adjudicator] was not entitled to consider that the [Claimant] would not be at risk on return simply by virtue of being a female returnee (from a majority clan) firstly the [Adjudicator] in this case found that the [Claimant] would be able to look to family members inSomalia
for support and would be returning to a town where she would not be alone and vulnerable, and secondly, the Tribunal and Country Guideline cases [has] not accepted that women returnees constitute a risk category per se. The grounds of appeal do not refer to any background materials that have not been considered by the Tribunal."
"… the Tribunal is requested to consider the point raised at appeal as to whether protection from a majority clan which is intrinsically linked with the protection of a majority clan milita is a suitable form of protection for the purposes of the Refugee Convention and/or the European Convention on Human Rights."
We heard argument on this, but note that the Appellant who had claimed to come from a minority not a majority clan, had, for sound reasons, not been believed.
The Quality of Protection Issue
"The reference in Article 1A (2) is to an asylum seeker being unable or unwilling to avail himself 'of the protection of that country', a reference to the earlier phrase 'the country of nationality'. That does seem to imply that the protection has to be that of an entity which is capable of granting nationality to a person in a form recognised internationally. That indeed was a point made in the Tjhi Kwet Kue case at page 11. The KAR does not meet that criteria. I see force also in the point made by Hathaway and Foster in their paper at page 46, that protection can only be provided by an entity capable of being held responsible under international law. That decision in Vallaj is not inconsistent with that proposition since the UNMIK regime in Kosovo had the authority of the United Nations plus the consent of the Federal Republic of Yugoslavia. Yet no-one suggests that the KAR or any part of it is such an entity under international law."
Our Conclusions on the Quality of Protection Issue
"13. Mr Vokes secondly asked the Tribunal to take the same view as Lord Justice Keene in Gardi and the Tribunal in Magdeed and conclude that the de facto authorities in control in the KAA were not entities capable of furnishing protection within the meaning of Art 1A(2) of the Refugee Convention. As we explained to Mr Vokes, we consider that on this question we should follow the starred determination of the Tribunal in the case of Dyli [2002] INLR 372 whose reasoning was not contradicted by either Mr Justice Dyson (as he then was) in Vallaj [2001] INLR 455 or the Court of Appeal in Canaj and Vallaj [2001] INLR 342. The judgment of Gardi [2002] 1 WLR 2755 was now a nullity and the remarks of Lord Justice Keene were obiter [sic]. It remains, of course, that the views of a senior judge should carry weight. However, despite being asked to follow the views of Professor Hathaway, it does not appear that his lordship's attention was drawn to the fact that the paper written by Professor Hathaway and Ms Foster was of recent origin and did not reflect the position the same Professor together with several refugee law experts took in the far more widely accepted Michigan Guidelines at paragraph 10 where it was stated that return on internal protection grounds to a region controlled by a non-state entity could be contemplated, albeit only where there was compelling evidence of that entity's ability to deliver durable protection. Nor does it appear that his attention was drawn to the fact that UNHCR`s position is that de facto entities are at least in principle capable of affording protection under the Refugee Convention. Moreover, taking a line through the House of Lords judgment in Adan [1997] 2 All ER 723, we consider there are cogent reasons for taking a pragmatic or functional approach according to which the issue of whether a de facto entity could afford Refugee Convention protection is essentially a question of fact. Such an approach also best reflects the principle of surrogacy according to which international protection should only be granted when there is in fact a denial of domestic protection."
"102. Moreover, the paper relied on does not, as was pointed out in Faraj, represent a settled and accepted view of the law applicable to internal relocation and does not purport to deal as such with protection issues in a claimant's home area. As noted in Dyli at paragraphs 17-18 in Thje Kwet Koe v MIEE [1997] FCA 912, cited in Gardi (no 1) and Saber, Tamberlin J had made it clear that his interpretation of Article 1A(2) was confined to the situation where the claimant was stateless. Further, the decision of Decary J in Ahmed Ali Zatzoli v MEI [1991] 3 CF 605 does not appear to have been considered in any of the cases referred to above. In that case the Canadian Court had accepted that it was practical protection that was relevant to refugee status rather than the protection of the official government in circumstances of civil war and the passage we quote must be considered in the context that nothing in the judgment suggested that there might be various entities capable of granting nationality. He expressed the proposition more widely in the following terms:
'The 'country', the 'national government', the 'legitimate government', the 'nominal government' will probably vary depending on the circumstances and the evidence and it would be presumptuous to attempt to give a general definition. I will simply note here that I do not rule out the possibility that there may be several established authorities in the same country which are each able to provide protection in the part of the territory controlled by them, protection which may be adequate though not necessarily perfect.'
103. It seems to us therefore that not only are the views expressed in Saber arguably obiter but that the issue in relation to protection has never been fully argued in respect of the home area of the claimant or of a situation where internal relocation is in point. It is an area where there remain potentially conflicting views from the international jurisprudence point of view. The decision in Saber is persuasive only so far as the English divisions of the Immigration Appeal Tribunal and Immigration Appellate Authority at least are concerned. In those circumstances the Tribunal and Adjudicators should regard themselves as still bound by the starred decision of Dyli on this issue until such time as there is an authoritative decision to the contrary following full argument."
"The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States. "
Article 7 of the Refugee Qualifications Directive
"Actors of protection
1. Protection can be provided by:
(a) the State; or
(b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State.
2. Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.
3. When assessing whether an international organisation controls a State or a substantial part of its territory and provides protection as described in paragraph 2, Member States shall take into account any guidance which may be provided in relevant Council acts."
"Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State".
Summary of Conclusions
(1) The Tribunal remains of the view that protection under the Refugee and Human Rights Conventions can be afforded by de facto or quasi-state entities. That view is now reinforced by Article 7 of the EU Refugee Qualifications Directive.
(2) Whether majority clans inSomalia are willing and able to protect is a factual question.
THE HONOURABLE MR JUSTICE HODGE OBE
PRESIDENT