The Court of Appeal has again revisited the vexed question of removals to war torn countries like Somalia in the major new case of HH (Somalia) v Secretary of State for the Home Department [2010] EWCA Civ 426. The issues at stake have also been the subject of a major decision of the European Court of Justice in Elgafaji and of the Court of Appeal in QD (Iraq).

It is noteworthy that the earlier tribunal case of HH (Somalia) is found to have been comprehensively wrong on the law (always in a way that is adverse to the asylum seeker, oddly) and has ‘a strong air of unreality’ about it (para 35).

The three questions the Court poses for itself at the outset are major ones:

(a) How is danger arising from generalised or indiscriminate violence to be appraised?

(b) On appeal against an adverse immigration decision, is the appellate tribunal’s decision only whether an individual can in principle be returned to his home state (or part of it) or is the tribunal required to consider the appellant’s safety at the point of return and on any journey that he or she must make from there to reach safety; or does this latter issue arise only when removal directions are given?

(c) What is the nature of the burden of proof resting on a person who contends that deportation will put his or her life at risk?

The answer to (a) is to be found in Elgafaji and QD (Iraq). This new case does not advance our understanding further.

On issue (b) the Court finds that the tribunal must not ‘throw up their hands’ and must make findings about route on return in order to consider an appellant’s full case for protection (para 63). The Court returns to this theme later in the judgment and repeats the point more strongly (forgive the long quote, but I can think of at least one of my recent cases where this is all highly relevant):

117. We think, with respect to the Tribunal, that it is there adopting the wrong approach. Their analysis suggests that the fact that the appellant has lied has of itself disabled them from reaching a conclusion on the article 3 risk. They seem to be throwing up their hands in despair; since the appellant has concealed the truth, they cannot make any necessary findings. This is further confirmed by paragraph 121 when they say that because his lying has prevented a full and proper inquiry, there is no relevant finding the Tribunal can make.

118. That does not, however, follow from GM. They first have to ask whether there is other evidence, independently of his unreliable testimony, casting light on the appellant’s particular situation. If so, they must have regard to that evidence. As Buxton LJ put it in GM (see para.98 above), there does not need to be much evidence, only sufficient to suggest that there is a real risk of persecution and thereby shift the burden to the Secretary of State to show otherwise. Nowhere does the Tribunal say that the only potential evidence is the appellant’s rejected testimony and that without it there is no relevant evidence, and we do not think that it can be fairly inferred from their decision that this was how they approached the matter. For example, there is no reference in the whole judgment to the fact that the appellant has spent the best part of the last twelve years in prison or administrative detention in the UK. In our view that must on any view have relevance to the likelihood of this particular appellant having current contacts in Mogadishu which will afford him the necessary protection.

119. In any event, in our judgment, if they did analyse the issue in that way, we agree with Mr Drabble that it was not a conclusion open to them on the evidence. That evidence was that the appellant was from a clan which was in the minority in Mogadishu; that he had not been there for some 15 years; and that for most of that time he had been in detention. Whatever links might exceptionally exist to provide protection for an Isaaq returning to Mogadishu, there was in our view sufficient evidence adduced before the Tribunal at least to establish a real risk that it was unlikely to apply to him. He was not simply putting himself into the general category of persons returning to Mogadishu, nor even of a minority clan member taking that step, and then relying on the relevant statistics as to how such persons would in general be treated. There was the particular feature of his history in the UK -the lengthy period and the fact of detention – which constituted evidence relevant to the particular and specific risks which he faced and which enabled the court to make an assessment of risk on the basis of evidence independent of his own testimony.

120. We agree that the Tribunal ought to have made an assessment on the basis of that evidence, and had they done so, they must have concluded that there was a real risk that he would not obtain the relevant protection. Without it, in the light of AM and AM he was plainly at risk of adverse article 3 treatment, and therefore his deportation would be unlawful.

The answer to question (c) is found at paragraph 118 above. However, the context of the case is crucial: the tribunal had already found that it would be very unusual for a person returned to Mogadishu to be safe. In those circumstances, it is merely sensible to shift the burden of proof to the Secretary of State. I doubt the Court of Appeal has suddenly shifted the burden of proof in all cases.

The Court also expresses a strong obiter opinion that route of return is not a ‘technicality’ and must be considered as part of a Refugee Qualification Directive case, otherwise the Secretary of State would be unlawfully denying a person EC law rights to which they would otherwise be entitled:

Our provisional view, in the light of the Directive, is that if there is a real issue on safety on return the Secretary of State must engage with it in his decision on entitlement to protection, and his conclusion can be the subject of appeal. In any case in which the Home Secretary did not deal with safety during return (because he did not consider that any issue arose) but where the appellant raises a cogent argument that there might not be a safe route of return, the appeal tribunal would have to deal with that issue, possibly after calling for information from the Home Secretary as to his intentions. In any event, as it seems to us at present, the decision on entitlement must be taken within a reasonable time and cannot be left until the Home Secretary is in a position to set safe removal directions.

That whole passage is interesting, but the last sentence raises some new issues. Twice in the judgment the Court expresses an opinion that Qualification Directive rights must be decided within a ‘reasonable time’ (paragraphs 81 and 84). That is normally interpreted as a period of six months. The Court seems to be suggesting an EC law right to an asylum decision within a period of six months. Most cases are decided within that time, of course, but a substantial number are not. It looks like there is now a remedy for that.

The Court also clearly indicates that the tribunal must enquire into the route of return. With the more robust approach to breach of directions signalled by the new President, this could make for interesting times.

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