The decision

Heard at Field House

APPEAL NO HX61897-2000
On 20 August 2002

MA (Risk-Jaaji Clan-Benadiri) Somalia CG [2002] UKIAT 04084


Date Determination notified:

30TH AUGUST 2002


Mr J Barnes
Mr R Baines, JP
Mr D R Bremmer








For the appellant: Mr R Toal, Counsel, instructed by
Wilson & Co, Solicitors
For the respondent: Mr G Saunders, Home Office Presenting Officer


1. The appellant, is a citizen of Somalia, born on 5 January 1969. He arrived in the United Kingdom on 24 November 1994 and applied for asylum. His asylum application was refused for the reasons set out in a letter dated 6 April 1995, but he was at the same time given 12 months exceptional leave to remain which was subsequently extended until 5 May 2001. On 3 August 1995 he applied for variation of the first grant of leave on the basis of a renewed asylum application and this was refused by letter dated 25 August 2000. He appealed against that refusal under Section 14(1) of the Immigration Act 1971 and Section 8(2) of the Asylum and Immigration Appeals Act 1993.

2. On 13 December 2000 his appeal was heard by Mr M P Keane, an Adjudicator, who dismissed his appeal. The Adjudicator accepted the appellant is a credible witness in his claims but, found that his claim did not engage the Refugee Convention since, applying the principles in the Secretary of State for the Home Department v Adan [1998] Imm AR 338, on the basis that treatment feared by the appellant was no more than that arising out of the ordinary incidences of the civil war in Somalia and that the appellant was not subject to the necessary deferential impact which would be necessary for the Convention to be engaged.

3. The appellant then sought leave to appeal to the Tribunal which was granted on 31 January 2001 limited to the appeal under Section 8(2) of the 1993 Act and the claim that the Adjudicator had erred in law in his application of the principle in Adan.

4. The appellant came from Mogadishu in the Benadir region and was a member of the Jaaji clan.

5. The Adjudicator made the following findings of fact at paragraph 23 of the determination:

"The appellant is a citizen of Somalia. He is a member of the minority Jaaji clan. He was captured and detained in 1991 in the mistaken belief that he was a member of the Hawiye clan. His release was secured by his employers. On returning to his home in Mogadishu two harrowing events took place. First, two of his brothers were murdered in front of him by armed gunmen. Second, his wife and two sisters were raped while lay unconscious on the floor. Their attackers were also armed gunmen. The appellant was captured and detained in September 1992. After 1 month he was able to escape and resolved upon flight. He left Somalia for Ethiopia."

6. There are certain additional details from the determination which we should record. It was the appellant's claim that the Jaaji clan were an outcaste minority clan outside the noble clan structure, and that they had a very low status. They had a tradition of endeavouring to conceal their clan identity and attempting to integrate themselves into other clan structures. They did not have an armed militia and were not protected by a warring clan. They had not participated in the civil war which had taken place in Somalia from 1991 onwards. The appellant had originally been captured and detained by the Darode militia on 15 January 1991 when he was working away from his home area. At that time he had been mistaken for a member of the Hawiye clan and was ill-treated for that reason until his employers were able to secure his release. He was captured and detained for the second time on 25 September 1992 in his home area because he was from the minority Jaaji clan, and he was detained in the Habar Gadir military camp until he was able to escape about a month later. It was between these two areas of capture and detention, after he had returned to Mogadishu, that his brothers were shot in front of him and, subsequently, that his wife and two sisters were raped by Abgal gunmen after he had been knocked unconscious.

7. At the commencement of the hearing, Mr Toal referred us to the Adjudicator's record of proceedings because there were passages in the evidence which had not been included in the determination. These passages were the appellant's explanations in oral evidence as to why he and his fellow clan members were treated in the way he had described. He had said that the two incidents in Mogadishu where his relations were attacked had been carried out by gunmen from the Abgal tribe and that he and his family had been targeted because it was their practice to find out the tribal or clan origins of those in the area whom they intended to attack and his neighbours were all aware that he and his family were of the Jaaji clan. Their attackers would know that they could act against them with impunity and without any fear of reprisal because there was nobody to protect him and his clan members.

8. At the time of the hearing before the Adjudicator the appellant's exceptional leave to remain expired on 5 May 2001, a little less than 6 months ahead. The Adjudicator was satisfied that there was no likelihood of any material change in the situation in Somalia and that he could properly consider whether removal at that stage would be in breach of the United Kingdom's obligations under the Refugee Convention. He said at paragraph 28 of his determination:

"I find that the appellant does not have a well-founded fear of persecution for the Convention reason of race if he was removed to Somalia on or after 5 May 2001. Earlier in this determination I made findings of fact. The appellant's account of event was credible and truthful. Nevertheless, the important issue in this appeal concerns the motives of those who persecute the appellant and indeed his brothers, wife and sisters. Depending on their motives for the attacks and actions in question, the appellant is either a victim of the incidents of civil war or a member of a group which is the victim of persecution. If the appellant is merely a victim of the incidents of civil war he is not a refugee within the Convention…"

9. The Adjudicator then referred to the judgments in Adan, setting out extracts from the judgment of Lord Lloyd and continued at paragraphs 32-34 of the determination as follows:

" I find that the appellant is just such a person. He is a member of a minority clan which has decided that because it is powerless to defend itself it should not try to defend itself. The Jaaji clan and its members are victims of civil war. Mr Toal sought to distinguish Adan (page 15 of the record of proceedings) by stating that the appellant and his father had not been involved in the fighting and indeed the Jaaji clan also had not been involved in the fighting. This submission was reinforced by paragraph 13 of his written submissions which made the same point. I do not consider that Mr Toal's submission is well-founded. Indeed I rely on the passage of the Immigration Appeal Tribunal in Adan quoted with approval by Lord Lloyd at page 349 of his judgment. The appellant is just one of many victims of civil war in Somalia. The fact that he has not participated in the war and the fact that his clan, the Jaaji clan, have not participated in the war, does not provide for him a differential impact at the time envisaged by Lord Lloyd. At 33 I note in passing that Professor James C Hathaway in "The Law of Refugee Status" stated that:

"…The Convention today remains firmly anchored in the notion of elevating only a sub-set of those at risk of war and violent conflict to the status of refugee."

34. Professor Hathaway admitted of two important exceptions. I consider one only. The exception comprised those persons who may be differentially at risk where the civil war or violence is directed at a particular social sub-group. Professor Hathaway mentioned a Canadian Immigration Appeal Board decision of Tekeste Kifletsion [1980] which concerned a civil war against a minority race inside a country verging on genocide. The claimed refugee status in those circumstances did arise. However, that is not the position here. The appellant is not a member of the clan which other clans which to exterminate. He is a victim of civil war. A highly unpleasant adjunct to civil war is that individuals, often armed and extremely dangerous, seek to exploit matters for their own benefit. The appellant and his family tragically been victims of their activities. I find that the appellant is a victim of civil war and not a victim of persecution."

10. Mr Toal for the appellant has made long and comprehensive submissions, both written and oral before us. We hope we do justice to those submissions in saying that the essence of them was that the Adjudicator had erred in law in restricting his consideration to one only of the two exceptions identified by Professor Hathaway to the general rule that victims of war and conflict are not refugees unless they are subject to differential victimisation based on civil or political status. He expresses his views as to the second exceptional at page 188 of "The Law of Refugee Status" in the following terms:

"Second, even within the context of generalised violence or war, there may exist a risk of serious harm specific to persons defined by a particular form of civil or political status. While early Canadian decisions prefer simply to adopt an absolutely dismissive view of claims derived from situation of conflict, the decision of the Federal Court of Appeal in Zahirdeen Rajudeen v Minister of Employment and Immigration marked a watershed in the approach to this issue. This case involved a Sri Lankan Tamil whose need for protection from Sinhalese thugs had been ignored by the authorities. The Immigration Appeal Board dismissed the claim as nothing more than a reflection of the generalised violence in Sri Lanka. The Federal Court, however, found that the harm faced by the claimant was in fact due to the unwillingness of authorities to protect him because of his race and religion:

"The applicant was not mistreated because of civil unrest in Sri Lanka but because he was a Tamil and Muslim."

This decision underscores the particular importance of enquiring into all of the circumstances of a claimant coming from an area which suffers from generalised violence in order to discern whether or not the risk faced by a particular individual or group is in fact rooted in civil or political status, in which case refugee status may follow.

Thus, while the general proposition is that the victims of war and violence are not by virtue of that fact allowing refugees, it is nonetheless possible for persons coming from a strike-torn state to establish a claim to refugee status. This is so where the violence is not simply generalised, but is rather directed toward a group defined by civil war or political status; or, if the war or conflict is non-specific in impact, where the claimant's fear can be traced to specific forms of disfranchisement within the society of origin."

11. Again, we hope we fairly reflect Mr Saunder's able submissions before us that the Adjudicator was right in his approach; the appellant and his immediate family had simply been the victims of random criminal violence which formed part of generalised violence within a civil war situation in which they were attacked simply because they were more vulnerable than other groups. He and his family were not attacked because of their political or civil status but, simply for reasons of vulnerability and an inability to defend themselves.

12. The Somali clan culture is, of course, highly complex and, as Mr Saunders fairly commented, one of the difficulties in this case is the lack of knowledge of the situation of the Jaaji clan. They are not as are, for example, the Bajuni clan mainly concentrated in one geographic area but, rather spread more diffusely through Somalia with particular concentrations in specific parts of the country, including Mogadishu where the appellant comes from. The Secretary of State is prepared to recognise that membership of certain of the minority clans in Somalia is reasonably likely to lead to persecution by reason of their racial or ethnic origin. The Secretary of State generally accepts, for example, that members of the Benadiri and the Bajuni minority groups are vulnerable and says in terms at paragraph 5.46 of the current CIPU assessment that "the future of the Bajuni in Somalia is uncertain".

13. Similar information in relation to what are referred to in the assessment as minority groups appears at paragraphs 4.17 and 5.44; in the former there is the only reference which we can detect to the Jaaji clan by name. It is appropriate to quote the whole of paragraph 4.17 dealing with the situation in Mogadishu:

"As before the civil war, Mogadishu, as the capital city, has a population containing people from virtually all clans and ethnic groups in Somalia, although the majority is Hawiye clan-family members. After Barre's overthrow, reprisals were exacted on members of his Marehan clan, with many leaving the city, but some of Marehan have returned and generally do not face persecution. Members of the minority population, such as the Reer Hamar, the original Benadiri population of Mogadishu (known in Somali as Hamar) living in the Hamar Weyne and Shingani districts, and Bantu, found themselves particularly exposed at times of heavy fighting. As with Somalia as a whole, an individual in Mogadishu will be most secure in an area in which his or her clan is able to afford them protection. Members of small clans and minority groups are, inevitably, at more risk, although some minority groups, such as the low caste Midgan, Tomal, Yubir, Ayle, Jaaji and Yhar, who may risk harassment by Somali clans in rural areas, do not necessarily find themselves facing particular human rights or security problems in Mogadishu."

14. Mr Toal referred us particularly to the report Dr Virginia Luling on caste groups in Somalia in or about 1996 and the report by Lee Cassanelli of May 1995 on "victims and vulnerable groups in Somalia". Dr Luling says that little is known of the situation of the "caste groups" or "Bondsmen" who are a small minority among the Somali who traditionally lived among the past nomadic clans but in recent decades had in many cases gone to live in cities. They are collectively known as Sab. The Jaaji tribe are one of the names met in this connection and were originally fishers. They all have in common that they are of low status and separate from the general Somali clan system. Previously they would attach themselves to a patron clan for whom they would perform services in return for protection but the many members of this collective group who have moved to the towns have become free of their dependence on their former patrons and are now without protection. Their only participation in the clan system was through the clan group which was there patron and they could not own land or major livestock, they are stigmatised because they would eat parts of the animal "free" Somalis will not eat; marriage between a Sab and a free Somali person is traditionally forbidden; but are not usually differentiated by appearance from the free Somalis. Dr Luling says that before the civil war and the separation and stigmatisation of the caste group was beginning to break down and that the move to the towns with people setting up independently in business contributed to this although a deep prejudice survived. During the Barre government people from caste groups were often favoured and might reach high positions but, those who did so under the Barre regime were sure to be doubly resented and open to revenge. She says that in the post 1991 violence members of the caste groups are especially vulnerable and, because of their traditional low status, are liable to be considered legitimate victims (like the Bantu) with no powerful clans to protect them.

15. Professor Cassanelli's research paper was prepared for the Research Directorate of the Canadian Refugee Board in May 1995. He lists as factors making minorities as a whole especially vulnerable to militia violence both during the early stages of war and the UN intervention, as military weakness, vulnerable assets, social isolation, political ****** and limited support networks beyond their home communities. He states that the minorities were not as a rule singled out as military targets by the post Barre militias, but that they were victimised repeatedly by armed gunmen of all persuasion with their home subject to searches and looting, women being raped and elders intimidated. In dealing the caste groups whom he also refers to being known collectively as "Sab" and treated as outcasts because traditionally they could only marry among themselves and other Somali clans considered them ritually polluted, but makes it clear it is difficult to generalise about the fortunes of such caste groups in the civil war. He says that they did not pose a significant threat to any other Somali group, although particular individuals and families who visibly supported the old regime were vulnerable to retaliation. Although he had been unable to find evidence save in one case involving the Abgal clansmen and the Yibir caste group, he had not found evidence of other cases of systematic retaliation against these minority groups. Although they could be attacked with impunity as they had no natural clan allies in the widest society and no collective voice in political circles.

16. The joint British, Danish and Dutch fact finding mission to Nairobi of September 2000 says very much the same about the plight of the caste groups. That report refers to the "Jaaji as being included in the term Midghan as collective term covering all these sub-groups and again emphasises the fact that they are scattered all over Somalia with little specific information available on the human rights and security situations. Again, it is said there are no indications that the security of Midghan, Tumal and Yibir is at risk for targeted actions by other clans but there are indications that their relationships with the major Somali clans have not improved much from traditional times and that they are still discriminated against in social and economic spheres. There is also a reference to the Sab castee groups has having no right to the payment of compensation for murder from the noble Somali clans – the payment of what is traditionally called "Diya". It was Mr Toal's submissions to us that this demonstrated very clearly the degree to which they are isolated from the traditional social infrastructure which provided some stability for the majority of Somali clansman.

17. What seems to emerge clearly to us from this background evidence is that it is extremely difficult to identify the situation of those who form part of these scattered castee groups but that, nevertheless, they do comprise defined and recognised sub-groups in Somali society who cannot in general terms place any reliance upon the traditional infrastructure of clan support. Because of their scattered nature it seems to us that there vulnerability has almost been approached on a case by case basis depending upon the specific facts which have been found as relating to the individual appellant, but nevertheless bearing in mind that the vulnerability or otherwise of specific individual from one of these castee groups stems from the vulnerability of members of such castee groups. It does, therefore, seem to us relevant that in the present case the appellant links the vulnerability of him and his family in Mogadishu to the fact that it was the lack of structured protection within Somali society which led to them being vulnerable and that their vulnerability would be revealed by enquiries made in the districts in which people who could be attacked with impunity would be sought out. This seems to us to be more than more random violence but rather a violence from whichever force happened to be dominant to be given at a time directed specifically against those who because of their position in society could not seek traditional sources of protection.

18. In this connection, what is said at paragraph 4.17 of the CIPU assessment is significant. Members of the Jaaji group among others are referred to as "not necessarily" finding themselves facing particular human rights or security problems in Mogadishu. That does not suggest that such problems may not exist for members of such a sub-group but that the individuals circumstances will require to be carefully analysed to see whether the particular applicant is at risk.

19. Applying this approach, and taking into account the fact that the appellant has been found wholly credible in the claims of the appalling treatment meted out to him and his family in Mogadishu in 1991 and 1992, we find that the appellant and his family were targeted by reason of their castee group and that the mistreatment did not arise simply because of the civil unrest in Somalia but because they were of that sub-group and could therefore be mistreated with impunity. We are satisfied, therefore, that the treatment suffered was not simply ordinary incidence of civil war to which the population at large was subject, but was inflicted on a genuinely differential basis against this appellant and his family. The treatment received at the time he fled the country would, therefore, in our view engage a Convention as being by reason of his racial or ethnic origin.

20. It was Mr Toal's submission to us that on the background evidence extensively placed before us, the situation had not improved in the intervening years and that Mogadishu still remain an exceptionally dangerous city. Mr Saunders did not seek to challenge that general assertion. The fact of past persecution is, of course, an important consideration in deciding whether there is a reasonable likelihood that it will be repeated if the appellant is now returned or, indeed, had he been returned at the expiration of his exceptional leave to remain in May 2001. We do not consider, having regard to the current country situation and the past persecution of this appellant, that it can be said there is no current real possibility that he would be further persecuted by reason of his ethnic origin in Somalia. We are satisfied therefore that he is entitled to succeed in his claim that he has a current well-founded fear of persecution in Mogadishu, his home area to which any return would as we understand it currently be effected.

21. It was not seriously suggested to us that the return to another part of Somalia, given the general problems of instability within that country and the fact that the appellant would be effectively be a displaced person elsewhere than in Mogadishu, would not be unduly harsh.

22. For the above reasons, and on the specific facts of this appellant's claims, this appeal is allowed.

J Barnes
Vice President