1. HH (Somalia) 2. AM (Somalia) 3. J (Somalia) 4. MA (Somalia) v. Secretary of State for the Home Department

Download the full judgement: HH-Somalia.pdf

Introductory
1. This judgment, which is the work of all three members of the court, is being given in unitary form because the cases to which it relates were selected for hearing by a single court in the hope of giving some general guidance on a number of related issues. Inevitably some issues have dropped away and others have acquired unanticipated prominence. All, however, have the same backdrop: the enforced return of individuals with no independent right to be or remain in the United Kingdom to a war-torn country, Somalia, where their safety is or may be in serious doubt.

2. Two particular paradoxes affect these cases.

3. One is that the common sense of waiting until removal or deportation is imminent before deciding whether it is safe has to be set against the mandate to primary and appellate decision-makers to take into account the full humanitarian and human rights implications of the immigration decision which is before them.

4. The other is that, difficult as it is, it is necessary to put aside the fact that none of those now claiming humanitarian and human rights protection has any independent entitlement to be in the United Kingdom, and that at least one has committed a serious crime which makes it wholly undesirable that he should remain here. The lack of any prior right to be here is the necessary predicate of all cases concerning safety on an enforced return, but that does not mean that such people are not entitled to the due process and protection of the law.

Conclusions
122. It has been sufficient for the purposes of resolving the issues before us to confirm, as this court has said on previous occasions (albeit only obiter) that where the route and manner of return are known or can be implied, the first tier tribunal must consider whether the applicant would be put at risk if returned by that route. We have not found it necessary to resolve the wider question whether that tribunal must always consider that question whenever the applicant puts it in issue, although our strong provisional view is that it must. If that is right, it will inevitably have important consequences for the status of the applicant pending directions finally being issued to secure his removal or deportation. We have not had directly to address that issue but it is bound to arise in the near future. Conceivably it might require a reference to the ECJ in due course, but that is not necessary in this case and no-one has suggested it.

123. Of the four cases dealt with in this judgment, the first, that of HH, involves only the application to the known facts of the law decided by the court in QD (Iraq). We have dismissed that appeal.

124. In the second and third appeals, those of AM and J, we have held that where the point of return and any route to the safe haven are known or ascertainable, these form part of the material immigration decision and so are appealable. We have upheld the appeals in both cases.

125. The fourth appeal, that of MA, establishes that even a mendacious appellant is entitled to protection from refoulement if objective evidence shows a real risk that return will place his life and limb in jeopardy. We have upheld the appeal in that case.