A convicted Somalian knife attacker has won a human rights case to stay in the UK because he is a member of a clan that faces persecution in his home country.
Abdilahi Essa Darwish, 41, was jailed for violence and wielding a blade in 2021 but has since won an immigration case after an asylum tribunal ruled he could be in danger if sent back.
The Home Office tried to deport Darwish after his conviction four years ago but a judge said it was a violation of his human rights.
In Somalia, Darwish was part of a minority tribe and it was found that he would face ‘persecution’ if he was returned to the east African nation.
Now he has been granted protection in the UK.
The Upper Tribunal of the Immigration and Asylum Chamber was told that Darwish originally came to Britain in June 2001 and claimed asylum that summer.
The hearing in Bradford, was told he was granted Indefinite Leave to Remain in 2002 because he qualified as a refugee due to his clan membership.
He was a member of the Shanshiya tribe, which is a sub-clan of the minority Reer Hamar clan, from the town of Afgoye, which is on the south coast of Somalia near the capital Mogadishu.
At the time of his arrival more than 20 years ago the Home Office accepted he had a ‘well-founded fear of persecution’ from majority clans in Somalia.
It was concluded he could face harm, punishment, or even torture if he were to return – a violation of Article 3 of the European Convention on Human Rights (ECHR).
However, in 2021 the Home Office tried to deport Darwish and revoke his protected status after he committed a knife crime.
‘[Darwish] committed an offence of possession of a bladed article and affray in respect of which he pleaded guilty and was sentenced to 12 months imprisonment’, a tribunal report said.
‘Thereafter the [Home Secretary at the time, Priti Patel] made a decision to deport [Darwish] to Somalia and to revoke his refugee status and this was done on January 5, 2021, and the deportation order was made on February 9, 2021.’
Darwish, who claimed he had a mental health condition, instructed lawyers to launch an appeal.
He won his appeal at the First-tier Tribunal last year but the Home Office appealed that decision at the Upper Tribunal.
The Home Office argued that last year’s tribunal ‘failed to establish a reason for which [Darwish] would suffer persecution on return to Somalia’.
The Home Office argued that the circumstances under which he was granted refugee status in 2002 had changed.
However, Upper Tribunal Judge Christopher Hanson found that Darwish still remains a refugee for the same reasons as 2002 and so dismissed the Home Office’s appeal.
The tribunal heard that official country guidance for Somalia states: ‘The starting point is that male and female members of minority clans from the south will, in general, be at risk of breaches of their Article 3 rights, and will be refugees, in the absence of evidence that they have a clan or personal patron and the means to access that area of safety without a real risk.’
Judge Hanson concluded: ‘Whilst subsequent [country guidance] decisions… show that minority clan members are no longer ipso facto at risk of being persecuted in Mogadishu, there is no country guidance indicating that the position in Southern Somalia i.e. outside of Mogadishu has altered.
‘Consequently, given that [Darwish] is from Afgoye, South Somalia, the starting point is that[he] continues to have a well-founded fear of persecution in his home area and thus the issue… is one of internal relocation.
‘It is clear that the Refugee Convention reason remains a fear of persecution on the basis of a particular social group viz [Darwish’s] minority clan membership of the Shanshiya sub-clan of the Reer Hamar.’