APPEAL No. AH (Town Tunnis regarded as Bravanese) Somalia [2004] UKIAT 00144

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 16 April 2004
Date Determination notified: 08 June 2004

Before

Mr J Perkins 
(Vice President)
Mr A L McGeachy

Between

AH	APPELLANT	
and	 	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	RESPONDENT	

DETERMINATION AND REASONS

1.	Before us the appellant was represented by Mr M A Rana of Counsel, instructed by Ratnam & Co, Solicitors and the respondent was represented by Mr A Hutton a Home Office Presenting Officer.
2.	The appellant is a citizen of Somalia.  She was born on 1 January 1975 and so is now 28 years old.  She appeals the decision of an Adjudicator, Mr P M Petherbridge, who in a determination promulgated on 28 June 2003 dismissed her appeal against the decision of the Secretary of State that she was not entitled to refugee status and the removing her from the United Kingdom was not contrary to her rights under the European Convention on Human Rights.
3.	Permission to appeal was given on a narrow basis.  The Vice President who gave permission (Mr C P Mather) said: “Permission is granted to enable the Tribunal to consider the status of the Tunni sub-clan and whether membership of it, without more, gives rise to a real risk on return”.
4.	The Adjudicator found the appellant to have been untruthful in some respects but his key findings for the purposes of this appeal appear at paragraph 30.  The Adjudicator said: 
“I accept the appellant as being a Somalian national….  I accept also that the appellant is of the Tunni sub-clan being one of the sub-groups of the Brava.  However, I do not consider that she can be regarded as Benadiri and I accept the objective evidence as set out on page 33 of the appellant’s bundle that the Tunni belong to the Digil clan family which itself is a majority clan.  I do not therefore accept the appellant as being of a minority clan.  I do not accept therefore that she would have been persecuted because of her Tunni clan membership.”
5.	By a letter received on 8 April 2004 but which did not come to the attention of this Tribunal until the morning of the hearing, the appellant asked for permission to call Dr Virginia Luling as an expert witness.  The application was supported by a short report from Dr Luling.  Although the application was rather late the case had been set down for hearing to determine the issues of safety in Somalia and Mr Hutton should have been, and was, ready to argue about country conditions.  That being so, although Mr Hutton opposed the application, we saw no injustice in permitting Dr Luling to give evidence.
6.	We found Dr Luling a very authoritative and impressive witness.  Dr Luling is qualified in social anthropology.  She has a first degree awarded by the University of Oxford and a Masters and Doctorate from London University.  She has made a particular study of Somalia and a town in Southern Somalia.  Although she did her initial field work in the 1960s she has kept abreast with affairs in the country and most recently visited it in 1996.  Mr Hutton did suggest that she may have been a little out of touch because she had not been to the country more recently.  We reject that submission.  Dr Luling’s reputation depends on her being familiar with the current situation in Somalia and we are satisfied that she was able to, and did, give honest and sound evidence about circumstances there today.
7.	Dr Luling is very familiar with the documents that are commonly produced in hearings concerning Somalia.  She knows the Report on Minority Groups in Somalia which was the result of a joint British, Danish and Dutch Fact-Finding Mission to Nairobi in September 2000 and the Somalia country report.  We look to the report dated October 2003.  Section B of the CIPU report sets out major Somalia clan families and under number 5 it mentions the Digil clan family made up of the Dabarre, Jiddu, Tunni, Geledi and Garre.  Dr Luling agreed that this annex does identify correctly the major Somali clan families but said that it had to be understood that “major” in this sense meant the major groups within the Somali clan family structure.  This was not the same as saying that the groups were politically powerful or important.  By and large Digil land has been occupied by Hawiye armed groups and Digil cattle have been confiscated.  Whilst it is correct to think of the Digil as a historically significant group it is wrong to think that they are powerful and able to protect themselves against others.
8.	Dr Luling then explained to us something about the Tunni sub-clan.    
9.	The background material identifies a group known as the “Tunni Torre”.  This appellant is not a Tunni Torre and this determination is not about Tunni Torres.  We mention them simply to distinguish the present case from them.
10.	Dr Luling said that the background material failed to recognise that there were two distinct Tunni groups and their circumstances and problems were not the same.  At paragraph 6.5 of the report on minority groups in Somalia the relationship between Brava and Tunni are considered.  The reports states: 
“The elders from Brava told the delegation that they consisted of two sub-groups:   The Bravanese and the Tunni.  Both groups are from Brava and they share to a large extent the same culture.  They inter-marry between their groups.  However, the Bravanese consider themselves Benadiri, while the Tunni do not.  The Bravanese are of Persian/Arab/Portuguese/Spanish origin.  According to the Bravanese elders the Tunni belong to the Digil clan-family.  They are originally from the region of Brava.  However, the elders gave the delegation a copy of a letter, written by the Bravani elders in Nairobi to a number of organisations (including the UNHCR, the US Immigration Department and Amnesty International), on their situation in Kenya, in which the Tunni are mentioned in Bravanese as part of the Baravani Community.”
11.	Dr Luling agreed with all this but said that the comments had to be explained further to be understood properly.  Those Tunnis who live away from Brava have preserved, and would be seen to have preserved, their own distinct identity.  They would be recognised as part of the Digil clan family and should be considered accordingly.  However, those Tunnis who lived near to Brava have been practically simulated into the Bravanese community.  
12.	Dr Luling had spoken to the appellant and understood her to have come from a particular village near to Brava.  Dr Luling did not herself know that village but she knew of it and its whereabouts.  She was entirely satisfied, and the Tribunal finds, that the appellant was a member of the group of Tunnis closely associated with the Bravanese and she accepted the Tribunal’s slightly tongue in cheek suggestion that that group could be identified as “Town Tunnis”.
13.	Dr Luling explained that although the “Town Tunnis” and the Bravanese, as explained in the report on minority groups, inter-marry and to a large extent share the same culture, they remain aware of their own identity.  The Bravanese believe that they are of Persian/Arab/Portuguese/Spanish origin and the Town Tunnis, in contrast, are aware that they come from the Digil clan family.  A Town Tunni who was asked to describe his clan origins would see himself as separate from the Bravanese and connected to the Digil clan family.  Similarly a Bravanese who was asked the same question would identify himself with the Benadiri and would see himself as someone of Persian/Arab/Portuguese/Spanish origin.  Dr Luling accepted entirely that the elders from Brava would have explained that the Bravanese and the Town Tunnis were separate groups.  That is how the people saw themselves.  However they preserved their sense of ethnic identity by descent through the male line.  Inter-marriage was common and, in reality, the two groups were intermingled.
14.	Dr Luling’s point was that the “Town Tunnis” would be perceived by others as Bravanese.
15.	In simple terms, a “Town Tunni” faces exactly the same problems, including the risk of persecution, as does a Bravanese.  A decision maker assessing the risks faced by a Town Tunni should assess them as if they were Bravanese.
16.	In fairness to Dr Luling, we should make it clear that she was not specifically asked if a “Town Tunni” would have the same problems relocating in other parts of Somalia as would a Bravanese.  We have concluded that a Town Tunni would experience these problems because difficulties of relocation arise not so much because a person is from the “wrong clan” but because she is not a member of the “right clan”.  It seems to us from the background material that a Town Tunni would find it as difficult to establish herself as would a Bravanese.  However, as explained above, this was not expressly put to Dr Luling and if we are wrong about that, then she should not be criticised.
17.	It follows from this that the Adjudicator’s analysis of the problems facing the appellant was plainly wrong although we must emphasise that we have only been able to reach that conclusion because the evidence before the Adjudicator has been explained to us by Dr Luling.  This finding should not in any way be seen as a criticism of the Adjudicator whose findings were entirely sensible in the light of the evidence as it appeared before him.
18.	We must now consider if the appellant would risk persecution in the event of her return as a Bravanese.  After some hesitation we have come to the conclusion that she would.  We have considered the UNHCR paper entitled “position on the return of rejected Asylum Seekers to Somalia” dated January 2004.  This supports the position we have taken above that it is not reasonable to expect someone in Somalia to take up residence in an area or community where persons with a different ethnic, tribal, religious and/or cultural background are settled, or where they would otherwise be considered as aliens.
19.	It is difficult to get a clear picture about conditions in Southern Somalia because it is so dangerous to go there that humanitarian agencies rarely visit.  It is well established that the Bravanese have been a vulnerable group for a long time and we find nothing in recent changes in the country that suggest an improvement in their circumstances.  The US State Department report published in February 2004 is similarly gloomy.  The report on minority groups acknowledges that the Benadiri, which is, for these purposes, another word for Bravanese, have no protection from any clan.  Whilst each case needs to be decided on its own merits we find no basis for concluding that this appellant would be safe.  She would be regarded as a woman from the Minority Benadiri clan.  There would be no one to protect her.  She would be returned to a country where she would be rejected unless she was amongst her own people and where she would be vulnerable to banditry and disorder made worse because of her status as a member of a minority clan.
20.	In all the circumstances we conclude that the appellant cannot be returned safely.  She is entitled to refugee status and, for the same reasons, returning her would be contrary to her rights under article 3 of the European Convention on Human Rights. 
21.	We allow this appeal.

								Jonathan Perkins
								Vice President

								16 April 2004