Somalians and Protection:ECHR Gives Great Weight to UK Upper Tribunal ‘s Assessment of Risk On Return To Somalia

Somalians seeking to resist return  to Somalia may seek to rely on several heads of protection  such as upon the Refugee Convention, Article 3 of the ECHR, Humanitarian Protection and any relevant exceptional personal circumstances.

In the Upper Tribunal in MOJ & Ors (Return to Mogadishu) Somalia CG 2014, UKUT 00442(IAC)   the issues were whether the current situation in Mogadishu was such as to entitle nationals of Somalia whose home area is Mogadishu or whose proposed area of relocation is Mogadishu to succeed in their claims for refugee status, humanitarian protection status under Article 15(c) or protection against refoulment under Articles 3 or 2 of the ECHR solely on the basis that they are civilians and do not have powerful actors in a position to afford them adequate protection.  The Upper Tribunal in MOJ 2014 however did not consider the position of clans(including minority clans/groups)  in southern and northern outside of Mogadishu. The Upper Tribunal in their decision sought to narrow the categories of those persons who might be considered at risk on return to Somalia and the European Court of Human Rights, has this month sought to place considerable weight upon the case of MOJ 2014 in concluding that a Somali woman aged 26 would not be at risk on return having regard to Article 3 of the ECHR in the case of R.H v Sweden 4601/14 notified on 10 September 2015.

POSSIBLE HEADS OF CLAIM

(1)Asylum Claim -Majority and Minority Clan Groups:

A person may fear ill- treatment by non- actors on account of a person’s membership of a majority clan or minority group.

The Upper Tribunal in MOJ 2014, however  stated at paragraph 77 of their judgement, ” Perhaps good indication of the very real change that has taken place in Mogadishu is that some commentators when referring to a “minority clan” now base that not on ethnicity but the fact of the clan being in a numerical minority in a particular area, despite its status as a majority clan on a national basis. It is clear that there have been very significant population movements in Somalia in recent years “.

The Tribunal in MOJ 2014  held  that the significance of clan membership in Mogadishu had changed. Clans now provide, potentially, social support mechanisms and assist with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.  On the basis of MOJ 2014, minority clan/group members are unlikely to face persecution on the basis of their ethnic or social group alone in Mogadishu.

The Home Office however  still leave room for consideration of claims based on fear of return based on clan membership in their Country Information and Guidance, South and Central Somalia: Majority Clans and Minority Groups- March 2015.    The Guidance clarifies  that the four  ‘noble’ (majority), clans are the  Darod, Hawiye, Isaaq, and Dir, while two further clans, the Digil and Mirifle, (also collectively referred to as Rahannweyn)  take an intermediate position between the main clans and the minority groups.

Minority  groups are considered to comprise of ethnic and religious minorities and occupational/out-caste groups. The latter are of the same ethnicity as members of the majority clans. Ethnic and religious minorities include the urban coastal  communities of the Benadir region(the Reer Hamar, Barawani-also known as Reer Brava or Bravanese-and the Bajuni) and the Bantu. Occupational and out-caste groups include members of the  Tumal, Midgan and Yibir.  Members of majority clans can be considered minorities where they live in an area  mainly populated by other majority clans.

The Home Office Guidance clarifies that while there have been reports of clashes between majority clans, country information does not indicate that there is widespread discrimination of majority clans because of their ethnicity/clan alone. It is therefore unlikely that any Somali belonging to one of the majority  clan families( Hawiye, Darood Dir and Isaaq)- or immediate clan groups or associated sub-clans- is able to demonstrate that they have a well founded fear  of ill treatment on return on their basis of their clan affiliation alone.

The Guidance  also states that  country information generally indicates that members of minority groups are likely to face political, social, economic and judicial discrimination, and human rights abuses including harassment and violence, killings and torture, rape, kidnapping for ransoms, and looting of land and property which in some circumstances may amount to persecution, however each case should be considered on its own taking into account a person’s personal circumstances. The Home Office consider that there is existing case-law that considers the position of minority groups and remains relevant  to assessing cases for groups particularly those outside Mogadishu, however that caselaw is based on country information up to 2005/2006 and so does not take into account recent changes in the country’s  human rights situation and in clan dynamics. The Home Office consider that whether a person from a minority group is at risk of persecution in areas outside of Mogadishu will depend on the minority group to which the person belongs; their ability to obtain protection and/ or support from a dominant clan; the area to which they are returning and their individual circumstances.

The Guidance considers that as regards minority groups who become Internally Displaced Persons(IDP) in any part of south and central Somalia and who have no choice but to live in an IDP camp are likely  to be at real risk of persecution on the basis of their social group or ethnic origin and are likely to qualify  for asylum. This is because they may face discrimination and various human rights violations including economic exploitation, extortion, forced labour, harassment and forced evictions which amounts to persecution. This particularly applies to  single women or a woman who is head of a household who may also be liable to gender-based violence and trafficking.

The Home Office also accept that minority group women without family or clan support or a real prospect of securing access to a livelihood are in general, likely to be at real risk on return and are likely to qualify for asylum. This is because women from minority groups  have experienced gender- based violence, rape, domestic violence, robbery, exploitation and economic discrimination. Crimes against women especially amongst women from minority groups are often perpetrated with impunity and women and girls  from minority groups and clans suffer a lack of access to justice, due process and clan protection.

The Home Office Guidance also sets out  issues in relation to internal relocation.  Internal relocation to Mogadishu and other areas of south and central Somalia not controlled by Al Shabab may be a viable option depending on the facts of the case. Relocation to Mogadishu for a person who has no clan or family support, not in receipt of remittances from abroad and who has no real prospect of securing access to a livelihood in the city, is however likely to be unreasonable. Internal relocation to areas controlled by Al Shabab will not generally be viable.  Internal relocation to Somaliland and Puntland will only be viable for former residents and members of locally based minority groups.

(2)Asylum Claim – Imputed political opinion- Fear of Forcible recruitment by Al Shabab or Association with Al Shabab:

AMM and others found that on the assumption that Al-Shabab’s likely behaviour towards those who transgress its rules is as found in their determination, the position is as “extreme” as the factual basis in RT (Zimbabwe) [2010] EWCA Civ 1285. In the light of RT, a person from an Al-Shabab area who can show they do not genuinely adhere to Al-Shabab’s ethos will have a good claim to Refugee Convention protection, once outside Somalia (subject to internal relocation and exclusion clause issues), regardless of whether the person could and would “play the game”, by adhering to Al-Shabab’s rules

The Tribunal in MOJ 2014 however subsequently found in particular, that a claimant will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country. The Upper Tribunal found that there had been durable change in the sense that the Al Shabaab withdrawal from Mogadishu was complete and there was no real prospect of a re-established presence within the city. There was no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including for recent returnees from the West.

(3)Asylum Claim – Women and Gender Based Persecution:

The Home Office Country Information and Guidance , Somalia: Women fearing Gender -Based Harm/Violence , February 2015,  accepts that women in  Somalia form a particular social group within the meaning of the 1951 UN Refugee Convention. This because they share an  immutable( or innate) characteristic  – their gender- that cannot be changed, and they form a distinct group in society as evidenced by widespread  discrimination in their fundamental rights.

The Upper  Tribunal in AMM and Others (conflict; Humanitarian crisis; returnees; FGM) Somalia CG 2011 ,UKUT 000445 (IAC)  found the incidence of Female Genital Mutilation(FGM ) in Somalia as universally agreed to be over 90%. The societal requirement for any girl or woman to undergo  FGM is strong. In general an uncircumcised, unmarried woman up to the age of 39 will be at real risk of suffering FGM. The risk will be greatest in cases where both parents are in favour of FGM. Where both are opposed, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand the strong societal pressures. Unless the parents are from a socio-economic economic background that is likely to distance from mainstream social attitudes, or there is some other particular feature of their case, the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others(particularly relatives) will at some point inflict FGM on her.

The February 2015 Home Office Guidance clarifies there is generalised and widespread discrimination towards women in Somalia. Sexual and gender- based violence including domestic violence, rape, sexual abuse exploitation and trafficking is widespread and committed with impunity by a range of actors including government security forces, members of armed opposition groups, militias, family and community actors and AMISOM peacekeepers.

The Guidance also states that women and girls  in Al- Shabab areas also face serious risks of being abducted and raped by Al- Shabab and forced into marriage with Al – Shabab fighters. They can also be forced to  work for All – Shabab as cleaners, cooks and porters. In some cases, girls have been used as suicide bombers as well. Female returnees  in particular face threats against the person in IDP camps, where the Somali National Police Force  are unable to provide protection, especially those belonging to minority clans. Further, women travelling without male friends or relatives are in general likely to face a real  risk of sexual violence as per paragraph  605 of AMM and others. Women who are without family/friends/clan connections or without resources are in general likely to be at risk of sexual and gender based violence on return. Factors to be taken into account include access to family support networks or clan protection and support, age, heath, economic status, family responsibilities, connection with the diaspora and other individual circumstances of the person.

The Home Office Guidancstates that FGM is almost universally practised throughout Somalia and a very strong cultural belief persists in its practise.

As regard protection issues, the Guidance states that in south and central Somalia(including Mogadishu)  effective system protection is in general unlikely to be available for women fearing sexual or gender based violence. The situation may be otherwise in Somaliland and Puntland where an assessment of whether effective protection is available needs to be considered in relation to the particular circumstances and profile of the person. Internal relocation to Mogadishu to avoid risk from gender based violence may be viable in some cases. Somaliland and Puntland in general only accept back persons who were former residents of those regions and are members of locally based clans or sub-clans. The practise is stated to be declining in Somaliland and Puntland and a woman may be less  likely to be at risk of being forced to undergo such a procedure there. The Guidance acknowledges that a woman who demonstrates a real risk or reasonable likelihood of ill-treatment  on return to Somalia on account of their gender and  who is also able to show that she is   unable to secure effective protection or relocate elsewhere in Somalia to escape that risk will qualify for asylum.

(4) Article 3 of the ECHR and Humanitarian Protection:

A claimant may resist removal  to Somalia on the basis that there is a general humanitarian or security situation in Somalia so severe as to make removal a breach of Article  3 of the ECHR.  Article 3 states, ” No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.   Removal may give rise to an issue under Article 3 of the ECHR where substantial grounds have been shown for believing that the person concerned if removed would face a real risk of being subjected to treatment contrary  to Article 3.

A claim may also be submitted on the basis that the security situation in Somalia presents a real risk which threatens life or person such that removal would be in breach of Article 15(c) of European Council Directive 2004/83/C of 29 April 2004 ( the “Qualification Directive”). Since 9 October 2006, UK legislation and policy on Humanitarian Protection has reflected the subsidiary protection provisions of Articles 15-19 of the Qualification Directive. Subsidiary protection is intended to be complementary and additional to the protection available in the Refugee Protection. It is only if the person does not qualify under the Refugee Convention that an assessment  needs to be made of the need for protection firstly under Article 3 of the ECHR and if that is unsuccessful, under Article15(C) of the Qualification Directive, ie claim for Humanitarian Protection.

Humanitarian Protection as set out under paragraph 339C of the Immigration Rules is commonly referred to as ‘subsidiary protection’, and is defined under Article 15 of the Qualification Directive.

Article 2(e) of the Qualification Directive provides;

“For the purposes of this Directive:

………..(e) ‘person eligible for subsidiary protection’ means a third country national…. who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, … would face a real risk of suffering serious harm as defined in article 15, … and is unable, or, owing to such risk,unwilling to avail himself of the protection of that country.”

Article 15 provides of the Qualification Directive provides ;

“Serious harm

Serious harm consists of

(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”

European and domestic caselaw has established the interpretation of Article15(C), firstly in the Court of Justice of the European Union, in Elgafaji  2009 EUECJC-465-07, secondly in the Court of Appeal, in QD(Iraq) v SSHD 2009 EWCA Civ  620 and in the summaries of the correct legal position as set out in the Upper Tribunal Country Guidance cases of HM and Others, (Article 15(C) Iraq CG 2012 UKUT 00409 (IAC): AMM and Others(conflict; humanitarian crisis; returnees; FGM) Somalia CG 2011 UKUT 00445(IAC) and AK( Article 15(c) Afghanistan CG (2012) UKUT 163).

On assessing whether the general security situation may breach Article 15c, the case-law of QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, held at parpgah 36 of the judgement that whilst there is no need for an internal armed conflict to be ‘exceptional’ in its nature for 15c to be breached, what is required is an intensity of indiscriminate violence ‘which will self-evidently not characterise every such situation and which is great enough to meet the test set out in Elgafagi.

QD Iraq summarises at paragraph 40 of its judgement:

“We would put the critical question, in the light of the Directive, of the ECJ’s recent jurisprudence and of our own reasoning, in this way:

Is there in Iraq or a material part of it such a high level of indiscriminate violence that substantial grounds exist for believing that an applicant such as QD or AH would, solely by being present there, face a real risk which threatens his life or person?”.

The two questions referred to the ECJ in Elgafaji  2009 EUECJC-465-07 by the Dutch Raad van State (council of state) were these:

“1. Is Article 15(c) of [the Directive] to be interpreted as offering protection only in a situation in which Article 3 of the [ECHR], as interpreted in the case-law of the European Court of Human Rights, also has a bearing, or does Article 15(c), in comparison with Article 3 of the [ECHR], offer supplementary or other protection?

  1. If Article 15(c) of the Directive, in comparison with Article 3 of the [ECHR], offers supplementary or other protection, what are the criteria in that case for determining whether a person who claims to be eligible for subsidiary protection status runs a real risk of serious and individual threat by reason of indiscriminate violence within the terms of Article 15(c) of the Directive, read in conjunction with Article 2(e) thereof?”

The Court held, that “it is article 15(b) of the Directive which corresponds, in essence, to article 3 of the ECHR”. It continued (§28):

“By contrast, article 15(c) of the Directive is a provision, the content of which is different from that of article 3 of the ECHR, and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the ECHR.”

The Court went on to address the question whether article 15(c) required proof of a threat directed at the individual applicant, and, if not, what was the correct test. It said:

“31 In order to reply to those questions, it is appropriate to compare the three types of ‘serious harm’ defined in Article 15 of the Directive, which constitute the qualification for

subsidiary protection, where, in accordance with Article 2(e) of the Directive, substantial grounds have been shown for believing that the applicant faces ‘a real risk of [such] harm’ if returned to the relevant country.

 32 In that regard, it must be noted that the terms ‘death penalty’, ‘execution’ and ‘torture or inhuman or degrading treatment or punishment of an applicant in the country of origin’, used in Article 15(a) and (b) of the Directive, cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm.

 33 By contrast, the harm defined in Article 15(c) of the Directive as consisting of a ‘serious and individual threat to [the applicant’s] life or person’ covers a more general risk of harm.

34 Reference is made, more generally, to a ‘threat … to a civilian’s life or person’ rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of ‘international or internal armed conflict’. Lastly, the violence in question which gives rise to that threat is described as ‘indiscriminate’, a term which implies that it may extend to people irrespective of their personal circumstances.

 35 In that context, the word ‘individual’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the Directive.

36 That interpretation, which is likely to ensure that Article 15(c) of the Directive has its own field of application, is not invalidated by the wording of recital 26 in the preamble to the Directive, according to which ‘[r]isks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm’.

37 While that recital implies that the objective finding alone of a risk linked to the general situation in a country is not, as a rule, sufficient to establish that the conditions set out in Article 15(c) of the Directive have been met in respect of a specific person, its wording nevertheless allows – by the use of the word ‘normally’ – for the possibility of an exceptional situation which would be characterised by such a high degree of risk that substantial grounds would be shown for believing that that person would be subject individually to the risk in question.

 38 The exceptional nature of that situation is also confirmed by the fact that the relevant protection is subsidiary, and by the broad logic of Article 15 of the Directive, as the harm defined in paragraphs (a) and (b) of that article requires a clear degree of individualisation. While it is admittedly true that collective factors play a significant role in the application of Article 15(c) of the Directive, in that the person concerned belongs, like other people, to a circle of potential victims of indiscriminate violence in situations of international or internal armed conflict, it is nevertheless the case that that provision must be subject to a coherent interpretation in relation to the other two situations referred to in Article 15 of the Directive and must, therefore, be interpreted by close reference to that individualisation.

39 In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.

 40 Moreover, it should be added that, in the individual assessment of an application for subsidiary protection, under Article 4(3) of the Directive, the following may be taken into account:

– the geographical scope of the situation of indiscriminate violence and the actual destination of the applicant in the event that he is returned to the relevant country, as is clear from

Article 8(1) of the Directive, and

– the existence, if any, of a serious indication of real risk, such as that referred to in Article 4(4) of the Directive, an indication in the light of which the level of indiscriminate violence required for eligibility for subsidiary protection may be lower.…….

43 Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that:

– the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;

– the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place –- assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred — reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.

44 It should also, lastly, be added that the interpretation of Article 15(c) of the Directive, in conjunction with Article 2(e) thereof, arising from the foregoing paragraphs is fully ompatible with the ECHR, including the case-law of the European Court of Human Rights relating to Article 3 of the ECHR (see, inter alia, NA. v. The United Kingdom, § 115 to 117 and the case-law cited).”

SOMALIA – DOMESTIC CASELAW ON ARTICLE 3 OF THE ECHR AND HUMANITARIAN PROTECTION

HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022:
Applying the definitions drawn from the Tadic jurisdictional judgment, the Upper Tribunal in HH and others found that for the purposes of paragraph 339C of the Immigration Rules and the Qualification Directive, on the evidence before them, an internal armed conflict exists in Mogadishu. The zone of conflict was confined to the city and international humanitarian law applied to the area controlled by the combatants, which comprised the city, its immediate environs and the TFG/Ethiopian supply base of Baidoa. The Upper Tribunal also decided that a person was 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. Neither the TFG/Ethiopians nor the Union of Islamic Courts and its associates were targeting clans or groups for serious harm. Whilst both sides in the conflict had acted from time to time in such a way as to cause harm to civilians, they were not in general engaging in indiscriminate violence. Clan support networks in Mogadishu, though strained, had not collapsed. A person from a majority clan or whose background disclosed a significant degree of assimilation with or acceptance by a majority clan would 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 continued to have access to arms, albeit that their militias no longer controlled the city. The Upper Tribunal found that a member of a minority clan or group who had no identifiable home area where majority clan support could be found would 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. That risk was directly attributable to the person’s ethnicity and was 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. The evidence disclosed no other relevant differentiating feature for the purposes of those Conventions and the Directive.

The Upper Tribunal considered that the evidence suggested 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 was therefore not appropriate to assume that a finding of minority group status in southern Somalia was itself sufficient to entitle a person to international protection, particularly where a person’s credibility was otherwise lacking.

AM & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091:

 The Upper Tribunal in AM & AM stated that when considering the question of whether a person is eligible for refugee protection on the basis of exposure to armed conflict, Adan [1998] 2 WLR 703 did not permit decision makers to reject their claims per se. A person may be able to succeed in a claim to protection based on poor socio-economic or dire humanitarian living conditions under the Refugee Convention or Article 15 of the Qualification Directive or Article 3, although to succeed on this basis alone the circumstances would have to be extremely unusual. In the context of Article 15(c) the serious and individual threat involved does not have to be a direct effect of the indiscriminate violence; it is sufficient if the latter is an operative cause. The Upper Tribunal decided that the Opinion of the Advocate General in Elgafaji, 9 September 2008 in Case C-465/07 did not afford an adequately reasoned basis for departing from the guidance given on the law in the reported cases of the Tribunal on Article 15(c), namely HH and others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022 and KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023. Before the Tribunal will take seriously a challenge to the historic validity of a Tribunal country guidance case, it would need submissions which seek to adduce all relevant evidence, for or against, the proposed different view. The historic validity of the guidance given in HH and Others was confirmed. The Upper Tribunal in AM & AM however stated that as regards the continuing validity of the guidance given in HH, the Tribunal considered that there have been significant changes in the situation in central and southern Somalia, such that the country guidance in that case was superseded to the following extent:

There was now an internal armed conflict within the meaning of international humanitarian law (IHL) and Article 15(c) of the Refugee Qualification Directive throughout central and southern Somalia, not just in and around Mogadishu. The armed conflict taking place in Mogadishu currently amounted to indiscriminate violence at such a level of severity as to place the great majority of the population at risk of a consistent pattern of indiscriminate violence. On the present evidence Mogadishu was no longer safe as a place to live in for the great majority of returnees whose home area is Mogadishu;

Assessment of the extent to which internally displaced persons (IDPs) face greater or lesser hardships, at least outside Mogadishu (where security considerations are particularly grave,) will vary significantly depending on a number of factors;

For those whose home area is not Mogadishu, they will not in general be able to show a real risk of persecution or serious harm or ill treatment simply on the basis that they are a civilian or even a civilian internally displaced person (IDP) and from such and such a home area, albeit much will depend on the precise state of the background evidence relating to their home area at the date of decision or hearing;

As regards internal relocation, whether those whose home area is Mogadishu (or any other part of central and southern Somalia) would be able to relocate in safety and without undue hardship would depend on the evidence as to the general circumstances in the relevant parts of central and southern Somalia and the personal circumstances of the applicant. Whether or not it was likely that relocation would mean that they have to live for a substantial period in an IDP camp, would be an important but not necessarily a decisive factor; Where a particular route and method of return is implicit in an immigration decision it is within the jurisdiction of the Tribunal to deal with issues of en route safety on return: see AG (Somalia) [2006] EWCA Civ 1342. But in the context of Somali appeals currently, the method of return is far too uncertain and so any opinion the Tribunal expresses on such issues can only be given on an obiter basis.

AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC):

On the assumption that Al-Shabab’s likely behaviour towards those who transgress its rules is as found in this determination, the position is as “extreme” as the factual basis in RT (Zimbabwe) [2010] EWCA Civ 1285. In the light of RT, a person from an Al-Shabab area who can show they do not genuinely adhere to Al-Shabab’s ethos will have a good claim to Refugee Convention protection, once outside Somalia (subject to internal relocation and exclusion clause issues), regardless of whether the person could and would “play the game”, by adhering to Al-Shabab’s rules.

Despite the withdrawal in early August 2011 of Al-Shabab conventional forces from at least most of Mogadishu, there remained in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad. Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. The significance of this category should not, however, be overstated and, in particular, is not automatically to be assumed to exist, merely because a person has told lies.

The armed conflict in Mogadishu does not, however, pose a real risk of Article 3 harm in respect of any person in that city, regardless of circumstances. The humanitarian crisis in southern and central Somalia has led to a declaration of famine in IDP camps in Mogadishu; but a returnee from the United Kingdom who is fit for work or has family connections may be able to avoid having to live in such a camp. A returnee may, nevertheless, face a real risk of Article 3 harm, by reason of his or her vulnerability.

Except as regards the issue of female genital mutilation (FGM), it is unlikely that a proposed return to Mogadishu at the present time will raise Refugee Convention issues.

Outside Mogadishu, the fighting in southern and central Somalia is both sporadic and localised and is not such as to place every civilian in that part of the country at real risk of Article 15(c) harm. In individual cases, it will be necessary to establish where a person comes from and what the background information says is the present position in that place. If fighting is going on, that will have to be taken into account in deciding whether Article 15(c) is applicable. There is, likewise, no generalised current risk of Article 3 harm as a result of armed conflict. In general, a returnee with no recent experience of living in Somalia will be at real risk of being subjected to treatment proscribed by Article 3 in an Al-Shabab controlled area. “No recent experience” means that the person concerned left Somalia before the rise of Al-Shabab in 2008. Even if a person has such experience, however, he or she will still be returning from the United Kingdom, with all that is likely to entail, so far as Al-Shabab perceptions are concerned, but he or she will be less likely to be readily identifiable as a returnee. Even if he or she were to be so identified, the evidence may point to the person having struck up some form of accommodation with Al-Shabab, whilst living under their rule. On the other hand, although having family in the Al-Shabab area of return may alleviate the risk, the rotating nature of Al-Shabab leadership and the fact that punishments are meted out in apparent disregard of local sensibilities mean that, in general, it cannot be said that the presence of family is likely to mean the risk ceases to be a real one.

Al-Shabab’s reasons for imposing its requirements and restrictions, such as regarding manner of dress and spending of leisure time, are religious and those who transgress are regarded as demonstrating that they remain in a state of kufr (apostasy). The same is true of those returnees who are identified as coming from the West. Accordingly, those at real risk of such Article 3 ill-treatment from Al-Shabab will in general be refugees, since the persecutory harm is likely to be inflicted on the basis of imputed religious opinion. Although those with recent experience of living under Al-Shabab may be able to “play the game”, in the sense of conforming with Al-Shabab’s requirements and avoiding suspicion of apostasy, the extreme nature of the consequences facing anyone who might wish to refuse to conform (despite an ability to do so) is such as to attract the principle in RT (Zimbabwe). The result is that such people will also in general be at real risk of persecution by Al-Shabab for a Refugee Convention reason. The same considerations apply to those who are reasonably likely to have to pass through Al-Shabab areas.

For someone at real risk in a home area in southern or central Somalia, an internal relocation alternative to Mogadishu is in general unlikely to be available, given the risk of indiscriminate violence in the city, together with the present humanitarian situation. Relocation to an IDP camp in the Afgoye Corridor will, as a general matter, likewise be unreasonable, unless there is evidence that the person concerned would be able to achieve the lifestyle of those better-off inhabitants of the Afgoye Corridor settlements.

Internal relocation to an area controlled by Al-Shabab is not feasible for a person who has had no history of living under Al-Shabab in that area (and is in general unlikely to be a reasonable proposition for someone who has had such a history). Internal relocation to an area not controlled by Al-Shabab is in general unlikely to be an option, if the place of proposed relocation is stricken by famine or near famine.

Within the context of these findings, family and/or clan connections may have an important part to play in determining the reasonableness of a proposed place of relocation. The importance of these connections is likely to grow, as the nature of the present humanitarian crisis diminishes and if Al-Shabab continues to lose territory.

Travel by land across southern and central Somalia to a home area or proposed place of relocation is an issue that falls to be addressed in the course of determining claims to international protection. Such travel may well, in general, pose real risks of serious harm, not only from Al-Shabab checkpoints but also as a result of the present famine conditions. Women travelling without male friends or relatives are in general likely to face a real risk of sexual violence.

An issue that may have implications for future Somali appeals is the availability of air travel within Somalia (including to Somaliland). Flying into Mogadishu International Airport is sufficiently safe. There is no evidence to indicate a real risk to commercial aircraft flying to other airports in Somalia.

The Upper Tribunal stated that the present appeals were not designed to be vehicles for giving country guidance on the position within Somaliland or Puntland. There is no evidential basis for departing from the conclusion in NM and others, that Somaliland and Puntland in general only accept back persons who were former residents of those regions and were members of locally based clans or sub clans. In the context of Somali immigration to the United Kingdom, there is a close connection with Somaliland.

A person from Somaliland will not, in general, be able without real risk of serious harm to travel overland from Mogadishu International Airport to a place where he or she might be able to obtain an unofficial travel document for the purposes of gaining entry to Somaliland, and then by land to Somaliland. This is particularly the case if the person is female. A proposed return by air to Hargeisa, Somaliland (whether or not via Mogadishu International Airport) will in general involve no such risks.

The incidence of FGM in Somalia is universally agreed to be over 90%. The predominant type of FGM is the “pharaonic”, categorised by the World Health Organisation as Type III. The societal requirement for any girl or woman to undergo FGM is strong. In general, an uncircumcised, unmarried Somali woman, up to the age of 39, will be at real risk of suffering FGM.

The risk will be greatest in cases where both parents are in favour of FGM. Where both are opposed, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand the strong societal pressures. Unless the parents are from a socio-economic background that is likely to distance them from mainstream social attitudes, or there is some other particular feature of their case, the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others (particularly relatives) will at some point inflict FGM on her.

MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC):

Generally, a person who is “an ordinary civilian” (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 3 of the ECHR or Article 15(c) of the Qualification Directive.  In particular, he will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country. There has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city. That was not the case at the time of the country guidance given by the Tribunal in AMM. The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered as a whole that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab’s resort to asymmetrical warfare on carefully selected targets. The present level of casualties does not amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk. It is open to an ordinary citizen of Mogadishu to reduce further still his personal exposure to the risk of “collateral damage” in being caught up in an Al Shabaab attack that was not targeted at him by avoiding areas and establishments that are clearly identifiable as likely Al Shabaab targets, and it is not unreasonable for him to do so. There is no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including for recent returnees from the West.

 

A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer. The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assist with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.

 

If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:

 

  • circumstances in Mogadishu before departure;
  • length of absence from Mogadishu;
  • family or clan associations to call upon in Mogadishu;
  • access to financial resources;
  • prospects of securing a livelihood, whether that be employment or self employment;
  • availability of remittances from abroad;
  • means of support during the time spent in the United Kingdom;
  • why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.Put another way, it will be for the person facing return to explain why he would not be able to access the economic opportunities that have been produced by the economic boom, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away.It will, therefore, 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. The evidence indicates clearly that it is not simply those who originate from Mogadishu that may now generally return to live in the city without being subjected to an Article 15(c) risk or facing a real risk of destitution. On the other hand, relocation in Mogadishu for a person of a minority clan with no former links to the city, no access to funds and no other form of clan, family or social support is unlikely to be realistic as, in the absence of means to establish a home and some form of ongoing financial support there will be a real risk of having no alternative but to live in makeshift accommodation within an IDP camp where there is a real possibility of having to live in conditions that will fall below acceptable humanitarian standards.

SOMALIA -RELEVANT ECHR CASELAW ON ARTICLE 3 OF THE ECHR AND HUMANITARIAN PROTECTION

Case of Sufi and Elmi v United Kingdom (Applications nos. 8319/07 and 11449/07) – 28 June 2011- found in summary that:

“248. The Court considers that the large quantity of objective information overwhelmingly indicates that the level of violence in Mogadishu is of sufficient intensity to pose a real risk of treatment reaching the Article 3 threshold to anyone in the capital. In reaching this conclusion the Court has had regard to the indiscriminate bombardments and military offensives carried out by all parties to the conflict, the unacceptable number of civilian casualties, the substantial number of persons displaced within and from the city, and the unpredictable and widespread nature of the conflict.

“250.Consequently, the Court concludes that the violence in Mogadishu is of such a level of intensity that anyone in the city, except possibly those who are exceptionally well-connected to “powerful actors”, would be at real risk of treatment prohibited by Article 3 of the Convention”.

Case of K.A.B. v. Sweden (Application no. 886/11) – 5 September 2013 found in summary that:

“91. The Court is aware that the human rights and security situation in Mogadishu is serious and fragile and in many ways unpredictable. However, in the light of the above, in particular the fact that al-Shabaab is no longer in power in the city, there is no front-line fighting or shelling any longer and the number of civilian casualties has gone down, it finds that the available country information does not indicate that the situation is, at present, of such a nature as to place everyone who is present in the city at a real risk of treatment contrary to Article 3 of the Convention. Therefore, the Court has to establish whether the applicant’s personal situation is such that his return to Somalia would contravene the relevant provisions of the Convention”.

Case of R.H. v. Sweden (application no. 4601/14)- 10 September 2015:

The case concerned the removal of a Somali asylum-seeker. The applicant, R.H., was a Somali national who was born in 1988. She applied for asylum in Sweden in December 2011, claiming that she had just arrived in the country. The Migration Board and migration courts examined her situation and eventually rejected her asylum application in June 2013 and ordered her deportation to Somalia. Those instances found that the applicant’s statements to the authorities lacked credibility: notably, she had already filed asylum applications in Italy and the Netherlands before arriving in Sweden in 2007, staying there illegally until contacting the migration authorities in 2011; and, initially claiming that she had left Somalia because of the war, had then changed her story to allege that she had fled Somalia with a secret boyfriend to escape a forced marriage to an older man and feared ill-treatment by her family on her return, particularly by her uncles who had already severely beaten her in 2004 for trying to escape. The applicant subsequently submitted a petition to have the enforcement of her deportation order stopped, claiming that her uncles had joined al-Shabaab, a jihadist terrorist group based in Somalia, forcing her brother to also join the group and killing her sister. The Migration Board rejected her petition in September 2013.

The applicant’s deportation was stayed in January 2014 on the basis of an interim measure granted by the European Court of Human Rights under Rule 39 of its Rules of Court, which indicated to the Swedish Government that the applicant should not be expelled to Somalia whilst the Court was considering the case.

Relying in particular on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, R.H. alleged that, if removed from Sweden to Somalia, she would face a real risk of either being killed by her uncles for refusing to agree to a forced marriage before fleeing Somalia or forced to marry a man against her will again upon her return. She further claimed that the general situation in Somalia for women was very difficult, in particular for those – such as herself – who lacked a male network and were therefore all the more vulnerable.

The   Court in R.H considered that:

“67. It is thus clear that the general security situation in Mogadishu remains serious and fragile. The available sources do not, however, indicate that the situation has deteriorated since September 2013. For example, in the Danish/Norwegian report of March 2014 (see paragraph 25 above), the UNDSS and an international NGO were reported as saying that there had been security improvements since April 2013. Also the conclusions drawn by the United Kingdom Upper Tribunal in MOJ & Ors (paragraphs 31-32) suggest that there has been an improvement. Given the high volume of oral and written evidence examined by the Tribunal, the Court considers that its assessment must be accorded great weight. Among other things, the Tribunal concluded that there had been durable change in the sense that the al-Shabaab withdrawal from Mogadishu was complete and there was no real prospect of a re-established presence within the city. The indiscriminate bombardments and military offensives mentioned by the Court in its 2011 judgment in Sufi and Elmi v. the United Kindom had been replaced by al- Shabaab attacks against carefully selected targets – politicians, police officers, government officials and those associated with non-governmental and international organisations – that did not include “ordinary civilians” or diaspora returnees. The Tribunal further considered that the areas and establishments at which these attacks were aimed were largely predictable and could be reasonably avoided by the citizens. Moreover, while the statistical information concerning casualty levels was deficient and unreliable, the cessation of confrontational warfare in Mogadishu and the changed type of attacks by al-Shabaab were found to have reduced the level of civilian casualties since 2011. The Tribunal also had regard to the “huge” number of people returning to the city, where new economic opportunities were available

  1. Consequently, having regard to the information available concerning the present situation in Mogadishu, the Court finds that the assessment made in K.A.B. v. Sweden (cited above, §§ 87-91) is still valid. Thus, there is no indication that the situation is of such a nature as to place everyone who is present in the city at a real risk of treatment contrary to Article 3. The Court must therefore establish whether the applicant’s personal circumstances are such that her return to Mogadishu would contravene that provision.
  2. The various reports attest to the difficult situation of women in Somalia, including Mogadishu. The UNHCR has identified women and girls as a particular risk group (see paragraph 37 above). While there has been legislative progress in the form of the development of a sexual offences bill, there are several concordant reports about serious and widespread sexual and gender-based violence in the country (paragraphs 27,30, 33-34 and 38). Not only civilians but also members of SNAF, AMISOM and other armed forces are perpetrators of abuse against women. Women are unable to get protection from the police and the crimes are often committed with impunity, as the authorities are unable or unwilling to investigate and prosecute reported perpetrators. It is also clear that women are generally discriminated against in Somali society and that they hold a subordinate position to men. As shown by the report of the Swedish Migration Board, women are reliant on men in many aspects of societal life (paragraph 30). In the Court’s view, it may be concluded that a single woman returning to Mogadishu without access to protection from a male network would face a real risk of living in conditions constituting inhuman or degrading treatment under Article 3 of the Convention.
  3. In sum, the Court considers that there are significant inconsistencies in the applicant’s submissions. The claims concerning her personal experiences and the dangers facing her upon return have not been made plausible. Accordingly, there is no basis for finding that she would return to Mogadishu as a lone woman with the risks that such a situation entails. In this connection, the Court notes that the applicant was informed of the death of her father in 2010 and her mother in 2011, indicating that she has retained contacts in Mogadishu. Moreover, she has family living in the city, including a brother and uncles. She must therefore be considered to have access to both family support and a male protection network. Furthermore, it has not been shown that the applicant would have to resort to living in a camp for refugees and IDPs.
  4. Consequently, while not overlooking the difficult situation of women in Somalia, including Mogadishu, the Court cannot find, in this particular case, that the applicant would face a real risk of treatment contrary to Article 3 of the Convention if returned to that city. Thus, her deportation to Mogadishu would not involve a violation of that provision”.

There was thus held to be no violation of Article 3 in the event of R.H.’s removal to Mogadishu in Somalia. Interim measure (Rule 39 of the Rules of Court) – not to deport R.H. to remain in force until judgment became final or until further order.

 CONSIDERATIONS AND CONCLUSIONS

Having regard to the outcome in R.H, the ECHR in effect agreeing with the reasoning and conclusion of the Upper Tribunal in MOJ 2014, and with the ECHR also having had regard to   very recent background evidence as regards the security   situation in Somalia, this gives little hope currently to increased successes in protection claims raised by Somalians in the UK. The positives however practically for Somalians in that country are that the security situation has improved and it has been reiterated that there is an “ economic boom” benefiting some and providing opportunities.

It is also important to note that  the Upper Tribunal in MOJ 2014 made it   clear that the country guidance issues addressed in their determination were not identical to those engaged with by the Tribunal in AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC). Therefore, where country guidance has been given by the Tribunal in AMM and others in respect of issues not addressed MOJ 2014 then the guidance provided by AMM and others continues to have effect.

Despite the conclusions in MOJ 2014 and R.H generally on Article 3 and humanitarian protection, there can in fact be viability of some claims capable of advancement for those that fall into a “carefully selected target” group- such claims   appear however to be confined to those with some high profile making them of particular adverse interest  to Al Shabab. A minority group member who becomes an internally  displaced person in any part of south and central Somali with no choice but to live in an IDP camp ; a minority group woman without family or clan support; a woman at risk of gender based persecution such as FGM and those whose personal circumstances are such that return would put them at risk can also still put forward a claim for protection.

Having regard to the  case and outcome  in R.H, it is important however that claimants be regarded as credible overall in order for there to be an acceptance of the factual accounts of those falling in the risk categories otherwise a claim may fall at the first hurdle.

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