Upper Tribunal (Immigration and Asylum Chamber) AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC) THE IMMIGRATION ACTS Heard at Field House Determination Promulgated On 13 to 21 June and 15 July 2011 ………………………………… Before UPPER TRIBUNAL JUDGE LATTER UPPER TRIBUNAL JUDGE P R LANE UPPER TRIBUNAL JUDGE KEKIĆ Between AMM MW ZF FM AF Appellants and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES Intervening © CROWN COPYRIGHT 2011 Representation: For Appellants AMM: Ronan Toal, instructed by South Manchester Law Centre For Appellant MW: Harriet Short, instructed by Avon & Bristol Community Law Centre For Appellant ZF: Mark Schwenk, instructed by Parker Rhodes Hickmotts, Solicitors For Appellant FM: Mark Symes, instructed by Wilson Solicitors LLP For Appellant AF: Ronan Toal, instructed by Wilson Solicitors LLP For the Respondent: Tim Eicke QC and Christopher Staker, instructed by the Treasury Solicitor For the UNHCR: Tom Hickman, instructed by Baker & McKenzie LLP Law 1) Whilst section 2 of the Human Rights Act 1998 and its associated case law requires United Kingdom tribunals in general to give effect to the jurisprudence of the European Court of Human Rights, including that Court’s guidance on how to approach evidence in international protection cases, the weighing of evidence and the drawing of conclusions as to the relative weight to be placed on items of evidence adduced before a United Kingdom tribunal are ultimately matters for that tribunal. Whilst the factual finding the Strasbourg Court has made as a result of applying its own guidance is something to which the domestic tribunal must have regard, pursuant to section 2, it is not bound to reach the same finding. 2) There is nothing jurisprudentially problematic with the Strasbourg Court’s judgment in Sufi & Elmi v the United Kingdom [2011] ECHR 1045, as regards Article 3 of the ECHR. The Court’s finding, that the predominant cause of the humanitarian crisis in southern and central Somalia was due to the current warring parties, meant that the high threshold (identified, inter alia, in N v United Kingdom [2008] ECHR 453) for finding an Article 3 violation in the case of naturally occurring phenomena did not need to be met. 3) That high threshold is, however, still capable of being crossed in cases of sufficient exceptionality. In deciding what constitutes an exceptional case, regard must be had to all the factors, including the actions of the parties to a conflict, albeit that those actions are not the predominant cause of the humanitarian crisis. 4) Despite the suggestion in the judgment in Sufi & Elmi that there is no difference in the scope of, on the one hand, Article 3 of the ECHR (and, thus, Article 15(b) of the Qualification Directive) and, on the other, Article 15(c) of the Directive, the binding Luxembourg case law of Elgafaji [2009] EUECJ C- 465/07 (as well as the binding domestic authority of QD (Iraq) [2009] EWCA Civ 620) makes it plain that Article 15(c) can be satisfied without there being such a level of risk as is required for Article 3 in cases of generalised violence 2 (having regard to the high threshold identified in NA v United Kingdom [2008] ECHR 616). The difference appears to involve the fact that, as the CJEU found at [33] of Elgafaji, Article 15(c) covers a “more general risk of harm” than does Article 3 of the ECHR; that Article 15(c) includes types of harm that are less severe than those encompassed by Article 3; and that the language indicating a requirement of exceptionality is invoked for different purposes in NA v United Kingdom and Elgafaji respectively. 5) Article 10 of the Qualification Directive requires the holding of some sort of belief, comprising a coherent and genuinely held system of values, whether these be theistic, non-theistic or atheistic, and is not satisfied in the case of a person who holds no such belief. Social restrictions, such as bans on watching football or television, do not comprise an interference with the right to religion, in the case of a person whose religious etc beliefs do not require him or her to participate in those activities. It is immaterial that a person may be permitted, according to those beliefs, to participate in the activities concerned. 6) Even where the motivation for a law is religious, the religious aspect will not, without more, lay the basis of a claim to international protection in relation to anyone who might fall foul of that law. However, the more such religiously motivated laws interfere with someone’s ability to hold and practise their religious or other beliefs, the more intense will be the scrutiny. 7) The necessary religious element to satisfy Article 1(A) of the Refugee Convention is not satisfied solely by reference to the persecutor; but that element can be satisfied if the persecutor ascribes to the victim a perceived religious opinion. 8) There is no general legal principle that, in determining a person’s entitlement to international protection, the Tribunal must leave out of account any possibility of that person’s carrying out an act in the country of proposed return, which – if carried out in the United Kingdom – would constitute a criminal offence. A genuine conscientious objection to complying with unjust laws or demands may, however, provide an entitlement to such protection. 9) On the assumption that Al-Shabab’s likely behaviour towards those who transgress its rules is as found in this determination, the position is as “extreme” as the factual basis in RT (Zimbabwe) [2010] EWCA Civ 1285. In the light of RT, a person from an Al-Shabab area who can show they do not genuinely adhere to Al-Shabab’s ethos will have a good claim to Refugee Convention protection, once outside Somalia (subject to internal relocation and exclusion clause issues), regardless of whether the person could and would “play the game”, by adhering to Al-Shabab’s rules. As can be seen from a comparison with Sufi & Elmi, the effect of RT is, accordingly, to take the Refugee Convention beyond the comparable ambit of Article 3 ECHR protection. 3 10) There is no legal burden on the Secretary of State to prove that there is a part of the country of nationality etc of an appellant, who has established a well-founded fear in their home area, to which the appellant could reasonably be expected to go and live. The appellant bears the legal burden of proving entitlement to international protection; but what that entails will very much depend upon the circumstances of the particular case. In practice, the issue of internal relocation needs to be raised by the Secretary of State in the letter of refusal or (subject to procedural fairness) during the appellate proceedings. 11) It will then be for the appellant to make good an assertion that, notwithstanding the general conditions in the proposed place of relocation, it would not be reasonable to relocate there. In an Article 3 claim, a similar position pertains, in that, although the test of reasonableness/undue harshness does not formally apply, unduly harsh living conditions etc – albeit not themselves amounting to a breach of Article 3 – may nevertheless be reasonably likely to lead to a person returning to their home area, where such a breach is reasonably likely. 12) An appellant who pursues their appeal on asylum and humanitarian protection grounds, following a grant of leave, is entitled to have their appeal decided on the hypothetical basis (if the facts so demonstrate) that family members would be reasonably likely to return with the appellant and that potential harm to those family members would cause the appellant to suffer persecution or Article 15(b) harm. 13) A person is not entitled to protection under the Refugee Convention, the Qualification Directive or Article 3 of the ECHR, on the basis of a risk of harm to another person, if that harm would be willingly inflicted by the person seeking such protection. 14) Article 8(1) of the Qualification Directive provides that Member States may determine that a person is not in need of international protection “if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. Article 8(3) states that Article 8(1) applies “notwithstanding technical obstacles to return to the country of origin”. Although the Court of Appeal in HH & Others [2010] EWCA Civ 426 found that Article 8 was “to do principally with internal relocation”, there is nothing in that judgment or in the Qualification Directive that demonstrates the Article is so confined, and it would be illogical for it to be so. Accordingly, difficulties in securing documentation to effect a return to a person’s home area may not entitle that person to international protection, whether or not there are real risks to that person in some other area of the country concerned. 15) In assessing the effect of an appellant’s lies (whether to the Secretary of State or a judicial fact-finder), it is unnecessary to construct a prescribed set of steps from the judgments of the Supreme Court in MA (Somalia) [2010] 4 UKSC 49, particularly if they might lead to a “mechanistic” rather than a holistic approach. The significance or “negative pull” of the lie will possibly depend not only on the strength of the background evidence but on whether the lie – looked at in its own terms – is about an issue that is central to the disposition of the appeal.