The hearing of the appeal by the Home Secretary in the Article 3 deportation case of MA (Somalia) began in the Supreme Court today before Lords Phillips and Walker, Lady Hale, Lord Mance and Sir John Dyson SCJ.   The Court of Appeal (Sedley, Smith  LLJ) had, in a single judgment of the Court ([2010] EWCA Civ 426) sought to give general guidance on a number of related asylum issues raised in four appeals from the Asylum and Immigration Appeal Tribunal (“AIT”) which all related to Somalia.  The case of the fourth of those appellants, MA, is the one which is now before the Supreme Court.
MA is a 34 year old citizen of Somalia who had arrived illegally in the UK in 1995 and then sought asylum.  He was granted exceptional leave to remain until February 2000.   In July 1998 he was convicted of rape and indecency with a child and sentenced to 8 years’ imprisonment.   He has been in detention every since.  On 21 May 2002 he was served with notice of intention to make a deportation order. He appealed that decision, raising human rights grounds. The Secretary of State agreed to treat this as a fresh application for asylum, but it was rejected.

There were various appeals and further removal directions were issued in January 2007.  The Secretary of State accepted that the situation in Mogadishu had changed significantly since the earlier decision and therefore he should treat this application as a fresh claim.   He then decided not  to revoke the deportation order. This was then the subject of the appeal before the court.  By virtue of committing his criminal offences, MA fell outside the scope of those who can claim humanitarian protection. Accordingly, the only issue in his case was whether it would infringe his rights under Article 3 for him to be deported.

The AIT found MA’s evidence to be evasive, obstructive and untruthful.   However, MA contended that the AIT had misdirected themselves when considering the question of risk on return. They had focused on the difficulties caused by the failure of  MA to tell the truth, but they should have asked whether there was evidence relating to his own particular situation, even ignoring his own rejected testimony, which would support his contention that there was a real risk that he would not have such protection on return.

The Court of Appeal accepted that the AIT’s analysis suggested that the fact that MA had lied has of itself disabled them from reaching a conclusion on the Article 3 risk. The Court held that if the AIT had made an assessment of the risk they “must have concluded that there was a real risk” that AM would not obtain the relevant protection on return to Mogadishu.

The issue on the appeal is that of the correct approach in relation to a claim for Article 3 protection where the applicant’s own evidence concerning his situation has been rejected as mendacious and there is no, or only limited general, other evidence before the tribunal to allow it to reach a conclusion as to whether a ‘real risk’ of mistreatment has been established.   The Home Secretary argues that the Court of Appeal illegitimately substituted its assessment of the facts for that of the AIT in an appeal that was restricted to point of law.