MA (Somalia) v SSHD – case update

MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49

MA’s conflicting evidence

MA’s account was comprehensively disbelieved by the Tribunal but he claimed that because the Secretary of State proposed to return him to Mogadishu he would be at risk of serious harm.

The country guideline case, AM & AM (armed conflict Somalia: risk categories) (Somalia) [2008] UKAIT 00091, established that returnees to Mogadishu are at risk unless they have close connections with powerful actors (such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs).

MA had given a great deal of conflicting evidence about his connections in Mogadishu and so although the tribunal concluded he had not told them the truth, it could not positively find that that he did have the relevant connections.

Dealing with evidence where an appellant is disbelieved

The Court explained how tribunals should approach general evidence establishing such a risk where they don’t believe the appellant’s evidence that bears on the question of whether such special circumstances apply (in this case, connections with powerful actors) [21]

In essence the Court held:

“33. …So the significance of lies will vary from case to case. In some cases, the AIT may conclude that a lie is of no great consequence. In other cases, where the appellant tells lies on a central issue in the case, the AIT may conclude that they are of great significance. MA’s appeal was such a case. The central issue was whether MA had close connections with powerful actors in Mogadishu. The AIT found that he had not told the truth about his links with Mogadishu. It is in such a case that the general evidence about the country may become particularly important. It will be a matter for the AIT to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant’s lies.”

The Court stressed that where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. It gave the following example:

“32. …Suppose, for example, that at the interview stage the appellant made an admission which, if true, would destroy his claim; and at the hearing before the AIT he withdraws the admission, saying that his answer at interview was wrongly recorded or that he misunderstood what he was being asked. If the AIT concludes that his evidence at the hearing on this point is dishonest, it is likely that his lies will assume great importance. They will almost certainly lead the tribunal to find that his original answers were true and dismiss his appeal. In other cases, the significance of an appellant’s dishonest testimony may be less clear-cut.”

It is important therefore to determine :

(1) the circumstances in which a lie was made and any explanation for it, for example fear or duress;

(2) the bearing that the lie has on a case, in other words, whether it bears upon a central or peripheral issue;

(3) the weight to be attached to the lie, and if necessary;

(4) the strength of the country material (and/or any other evidence) to ‘counteract the negative pull of the lie’.  In regard to the latter it is likely such evidence will need to be free from dispute and establish facts to near certainty.

Analysis

Practitioners will of course note the Court’s endorsement of Lady Hale’s remarks in AH (Sudan) v SSHD [2007] UKHL to the effect that findings of expert tribunals (as under consideration in this case) should be given a degree of deference [43] and [44] and that the Higher Courts should be slow to intervene unless clear errors of law have been established.

Even more worryingly, the Court doubted the conventional understanding that past facts should be established to the lower standard of ‘real possibility’, suggesting that in the right case the Court would decide authoritatively upon the point [20].

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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