H-AB-V5

		MS (inability to make entry clearance application) Somalia [2005] UKIAT 00003	
Heard at Field House			
On 1 November 2004			

IMMIGRATION APPEAL TRIBUNAL

                                                                              Date Determination notified:

                                                                                     ...............17/01/2005..........	

	Before:		

Mr D K Allen (Vice President)
Mrs W Jordan
Mrs L R Schmitt
	
Between	

	
		APPELLANT	
			
	and		

SECRETARY OF STATE FOR THE HOME DEPARTMENT
	
		RESPONDENT 	

DETERMINATION AND REASONS

1.	The Appellant is a citizen of Somalia who appeals to the Tribunal with permission against the determination of an Adjudicator, Mrs C M Hawden-Beal, in which she dismissed his appeal against the Secretary of State’s decision of 29 May 2003 issuing directions for his removal from the United Kingdom, asylum having been refused.

2.	The hearing before us took place on 1 November 2004.  Mr A Mahmood for Blakemores Solicitors appeared on behalf of the Appellant, and Mr J Jones appeared on behalf of the Secretary of State.  

3.	The only issue before us is that of Article 8 of the Human Rights Convention.  The Adjudicator found the Appellant to lack credibility and dismissed his claim under Article 3 and the Refugee Convention and there is no challenge to those findings.  As regards the Article 8 claim, the point is made in the grounds of appeal that there were insurmountable obstacles to the Appellant’s wife joining him in Somalia since she had been granted indefinite leave to remain and was of a minority clan and there was no manner in which he could secure the appropriate documentation to enable him to make an application for entry clearance from Somalia to return to the United Kingdom.  

4.	Before us Mr Mahmood referred to an earlier for mention hearing at which it had been said by the Presenting Officer that postal applications could be made to the British High Commission in Nairobi for Somalis wishing to apply for entry clearance to come to the United Kingdom, in the absence of any such facilities in Somalia.  With typical fairness Mr Jones had furnished Mr Mahmood with a copy of the recent Tribunal determination in A M (Somalia) [2004] UK IAT 00276 which dealt with a similar point.  In particular Mr Mahmood referred us to paragraphs 17 and 19 in A M concerning the practical problems for a person in the Appellant’s position seeking to make an entry clearance application from Nairobi.  Mr Jones had evidence which he would produce which showed that the situation had moved on, and that it was the case that now the High Commission in Nairobi was considering applications but the difficulty was that, contrary to what had been thought that at the directions hearing, they were not accepting postal applications.  Even if that were possible the question had to be asked whether it was indeed possible to make a postal application in practical terms from Somalia.  It was entirely unclear how a Somali national would get to Nairobi in order to make an application, and therefore there were insurmountable obstacles to the Appellant’s family life if he were removed from the United Kingdom.

5.	Mr Jones referred to the information that he had received as a consequence of his research over the weekend in the form of a fax which had come via Croydon from the British High Commission in Nairobi.  In that fax it was confirmed that postal applications would not be accepted and that a person would have to apply in person.  The High Commission did not accept Somali passports as establishing nationality and identity but if they were satisfied as to a person’s nationality and identity then an entry clearance application could be entertained.  It was not said in the fax how the High Commission would satisfy itself concerning identity and nationality.  The other point to mention was that a marriage certificate had been produced which showed that the Appellant had married his wife in a registry office ceremony on 9 January 2004 in Birmingham.  As regards the conclusions of the Tribunal in A M, Mr Jones had nothing to add.

6.	We are grateful to both representatives for their submissions and in particular to Mr Jones for the very helpful research that he has carried out in order to clarify the position as of today and also to him for furnishing Mr Mahmood with a copy of A M.  In A M the situation was that the Claimant like the Appellant in the appeal before us would need to return to Somalia in order to obtain a passport in order to enable him to go to Kenya to apply for entry clearance to join his wife in the United Kingdom.  The Tribunal referred at paragraph 13 of the determination to a letter of 14 July 2004 from the Kenyan High Commission in London confirming that in order to enter Kenya a person must be in “possession of a valid passport and a visa (where required).  They must also be returnable to their country of residence.”  We note from the file that the Appellant does not have a passport.  

7.	The Tribunal went on to note at paragraph 14 of the determination in A M that though informal documentation could be obtained in Somalia, the Presenting Officer had very properly not tried to suggest that the Appellant could be expected to enter Kenya by availing himself of such informal documentation.  The Tribunal went on to note that it was clear that the UN office for the Co-ordination of Humanitarian Affairs, Integrated Regional Information Network (IRIN) which had provided information concerning the opening of a new passport office in Mogadishu in September 2002 did not appear to have direct knowledge as to whether a new passport office had in reality been opened by the Transitional National Government in 2002.  The situation in Mogadishu remained uncertain and the Tribunal concluded that there must be significant doubt as to whether the Appellant would in practice today be able to obtain from the Transitional National Government in Mogadishu a passport which would be acceptable to the Kenyan government.

8.	The Tribunal went on to note the further problem that existed at that time that in fact no new applications for entry clearance were being accepted by the High Commission then.  We understand from the information obtained by Mr Jones that that situation no longer pertains and that entry clearance applications are entertained.  It is however clear on the one hand that postal applications will not be considered and secondly that even if the Appellant could overcome the problems of obtaining a passport or other documentation to enable him to leave Somalia on return and go to Nairobi, that a Somali passport is not accepted as establishing nationality or identity, and it is entirely unclear from the fax sent by the High Commission in Nairobi on what basis the High Commission would consider itself satisfied as to a person’s nationality and identity.  That is a far from helpful situation, and it is to be hoped that in future clarification will be provided as to the kind of documentation or information that might be regarded as acceptable.  As things stand however we consider that though the position has moved on since the time when the Tribunal heard A M in July 2004, that does not make any material difference to a person in the position of the Appellant before us with regard to the possibility of return to Somalia and thereafter obtaining entry clearance from the British High Commission in Nairobi enabling him to join his wife in the United Kingdom.  As things stand it remains the case in our view that there are insurmountable obstacles to the appellant making an entry clearance application from outside the United Kingdom.  In all the circumstances it would be a disproportionate interference with his right to respect for family life under Article 8 to require him to leave the United Kingdom and seek to apply for entry clearance.  Accordingly we consider that the Article 8 claim in this case must succeed and this appeal is therefore allowed.

D K ALLEN
VICE PRESIDENT