IAT (1) In deciding whether an international or internal armed conflict exists for the purposes of paragraph 339C of the Immigration Rules and the Qualification Directive (but not for any wider purpose outwith the jurisdiction of the Tribunal), the Tribunal will pay particular regard to the definitions to be found in the judgments of international tribunals concerned with international humanitarian law (such as the Tadic jurisdictional judgment). Those definitions are necessarily imprecise and the identification of a relevant armed conflict is predominantly a question of fact.
(2) It will in general be very difficult for a person to succeed in a claim to humanitarian protection solely by reference to paragraph 339C(iv) of the Immigration Rules and article 15(c) of the Directive, ie. without showing a real risk of ECHR article 2 or article 3 harm.
(3) Applying the definitions drawn from the Tadic jurisdictional judgment, for the purposes of paragraph 339C of the Immigration Rules and the Qualification Directive, on the evidence before us, an internal armed conflict exists in Mogadishu. The zone of conflict is confined to the city and international humanitarian law applies to the area controlled by the combatants, which comprises the city, its immediate environs and the TFG/Ethiopian supply base of Baidoa.
(4) A person is not at real risk of serious harm as defined in paragraph 339C by reason only of his or her presence in that zone or area.
(5) Neither the TFG/Ethiopians nor the Union of Islamic Courts and its associates are targeting clans or groups for serious harm. Whilst both sides in the conflict have acted from time to time in such a way as to cause harm to civilians, they are not in general engaging in indiscriminate violence.
(6) Clan support networks in Mogadishu, though strained, have not collapsed. A person from a majority clan or whose background discloses a significant degree of assimilation with or acceptance by a majority clan will in general be able to rely on that clan for support and assistance, including at times of displacement as a result of security operations, etc. Majority clans continue to have access to arms, albeit that their militias no longer control the city.
(7) A member of a minority clan or group who has no identifiable home area where majority clan support can be found will in general be at real risk of serious harm of being targeted by criminal elements, both in any area of former residence and in the event (which is reasonably likely) of being displaced as described in sub-paragraph (6) above. That risk is directly attributable to the person’s ethnicity and is a sufficient differential feature to engage the Refugee Convention, as well as article 3 of the ECHR and paragraph 339C/article 15(c) of the Qualification Directive (but for the first sub-paragraph (ii) of paragraph 339C).
(8) The evidence discloses no other relevant differentiating feature for the purposes of those Conventions and the Directive.
(9) The issue of whether a person from a minority clan or group falls within sub-paragraph (7) above will often need specific and detailed consideration. The evidence suggests that certain minority groups may be accepted by the majority clan of the area in question, so as to be able to call on protection from that clan. On the current evidence, it may therefore not be appropriate to assume that a finding of minority group status in southern Somalia is itself sufficient to entitle a person to international protection, particularly where a person’s credibility is otherwise lacking.
(10) Subject to sub-paragraph (9) above, outside Mogadishu and its immediate environs, the position in southern Somalia is not significantly different from that analysed in NM and Others (Lone women-Ashraf) Somalia CG [2005] UKIAT 00076
(11) Air travel to and from Mogadishu has not been significantly interrupted; nor has the mobile telephone network in southern Somalia.
(12) Subject to what is said above, NM continues to be country guidance. However, FK (Shekal Ghandershe) Somalia CG [UKIAT 00127 is not to be relied on as authority for the proposition that all members of the Sheikhal Jasira or the Sheikhal Ghandershe are as such entitled to international protection as unprotected minorities. The evidence on which the Tribunal in AA (Risk-Geledi-Benadiri Clan) Somalia [2002] UKIAT 05720 reached its conclusions is also now materially out of date and unreliable and should no longer be followed.
Citations:
[2008] UKAIT 00022
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 14 July 2022; Ref: scu.266666
