NI: Decision not to allow Somalian man to make fresh asylum application quashed
The High Court in Belfast has quashed the Home Secretary’s decision not to allow a Somalian man to make a fresh asylum application nearly 15 years after absconding during the asylum process.
Omaar Ismail fled from Somalia in 2002 and claimed asylum in the UK shortly after arriving in London in early 2003. After absconding in the aftermath of his screening interview, his claim was refused and the appeal subsequently filed by his lawyers was dismissed without hearing.
He remained in the UK and moved to Belfast in 2017 because he had a friend who lived there. Mr Ismail “kept my head in the sand about my irregular immigration status throughout all of these years”, he said in an affidavit.
In autumn 2017, he approached a solicitor in Belfast to help him make a fresh asylum application and subsequently availed of the “further submissions” process under paragraph 353 of the Immigration Rules.
The Home Office decision-maker considered that the submissions included material which had not already been considered, namely Mr Ismail’s claim that he has a well-founded fear of persecution on the basis of ethnicity as a Bandhabo (minority clan) and his claim that he has a well-founded fear of persecution by the militant group Al Shabab.
However, the decision-maker refused Mr Ismail’s application because the new material did not create “a realistic prospect of success” when taken together with the previously considered material. Mr Ismail subsequently sought a judicial review.
Lawyers for the Home Office highlighted the decision in MOJ (Returns to Mogadishu) (Somalia) (CJ)  UKUT 00442, which the High Court agreed has particular relevance in determining whether or not there is a real risk of the applicant being exposed to treatment contrary to Article 3 of the ECHR upon his return to Mogadishu, his place of birth.
The Upper Tribunal ruled that it will “only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms”.
Mr Justice Adrian Colton, delivering the judgment for the High Court, said it was “clear that a fundamental aspect of the applicant’s submission is that he has no nuclear family in Mogadishu”, an assertion which was rejected by the decision-maker.
“I recognise that the decision was not made solely on the basis of the absence of a nuclear family in Mogadishu but that consideration was clearly central to the decision,” the judge said. “I cannot therefore accept that in respect of the evaluation of the facts in his consideration the Secretary of State has satisfied the requirement of anxious scrutiny.”
The judge considered that the appropriate remedy is an order of certiorari quashing the impugned decision of the Home Secretary. The matter should be referred back for reconsideration by a different decision-maker and remaking of the decision, he said.
“In particular the decision-maker should consider the impact of the applicant’s case that in fact his parents are deceased and the consequences that has for his claim,” he said.
“In my view this should also entail considering any further representations on behalf of the applicant. This would be preferable to the making of a decision on the narrow basis as to whether or not the applicant has a nuclear family in Somalia and the effect that might have on his prospects of success.”