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SUFI and ELMI v. THE UNITED KINGDOM - 8319/07 [2011] ECHR 1045 (28 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1045.html
Cite as:
[2011] Crim LR 882,
[2011] ECHR 1045,
(2012) 54 EHRR 9,
[2011] ECHR 8319/07
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FOURTH
SECTION
CASE OF SUFI and ELMI v. THE UNITED KINGDOM
(Applications
nos. 8319/07 and 11449/07)
JUDGMENT
STRASBOURG
28 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
TABLE OF CONTENTS
Page
PROCEDURE 1
THE
FACTS 2
I. THE
CIRCUMSTANCES OF THE CASE 2
A. The first
applicant 2
B. The second
applicant 3
II. RELEVANT
DOMESTIC LAW AND PRACTICE 5
III. RELEVANT
EUROPEAN UNION LAW 6
IV. RELEVANT
PRINCIPLES OF INTERNATIONAL PROTECTION 7
V. RELEVANT
INFORMATION ABOUT SOMALIA 8
A. Factual
background 8
B. Parties to the
conflict 10
1. The
Transitional Federal Government 10
2. African
Union Mission in Somalia (AMISOM) 10
3. Ethiopian
forces 10
4. Al-Shabaab 10
5. Hizbul
Islam 11
6. Ahlu
Sunna Waljamaca 11
VI. RELEVANT CASE
LAW 11
A. NM and others
(Lone women – Ashraf) Somalia CG [2005] UKAIT 00076 11
B. HH & Others
(Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022 12
C. AM & AM
(armed conflict: risk categories) Somalia CG [2008] UKAIT 00091 13
D. HH (Somalia),
AM (Somalia), J (Somalia) and MA (Somalia) v Secretary of State
for the Home Department [2010] EWCA Civ 426 16
E. AM (Evidence –
route of return) Somalia [2011] UKUT (IAC) 18
F. Judgment of 24
February 2011 (UM 10061-09) of the Swedish Migration Court of Appeal
(Migrationsöverdomstolen) 19
VII. RELEVANT
COUNTRY INFORMATION 19
A. United Kingdom
Government Reports 19
1. Somalia:
Report of Fact-Finding Mission to Nairobi,
8 – 15
September 2010 19
2. United
Kingdom Border and Immigration Agency Operational Guidance Note 22
B. United States’
Government Reports 25
1. Department
of State Country Report on Human Rights Practices, Somalia, 2009 (11
March 2010) 25
2. “Somalia:
Current Conditions and Prospects for a Lasting Peace”,
Congressional Research Service, 16 December 2010 25
C. The Norwegian
Directorate of Immigration Country of Origin Centre Somalia:
Security and Conflict in the South (23 August 2010) 25
D. United Nations
Reports 28
1. The
UN Secretary-General’s Reports 28
2. Report
of the independent expert on the situation of human rights in
Somalia, Shamsul Bari (16 September 2010) 30
3. United
Nations High Commissioner for Refugees (UNHCR): Eligibility
Guidelines for Assessing the International Protection Needs of
Asylum-Seekers from Somalia (“the Eligibility Guidelines”),
5 May 2010 31
E. Non-Governmental
Organisations’ Reports 32
1. Amnesty
International: No End in Sight – The Ongoing Suffering of
Somalia’s Civilians (25 March 2010) 32
2. Amnesty
International Briefing Paper, 18 October 2010 34
3. Amnesty
International – From Life Without Peace to Peace Without
Life 35
5. Human
Rights Watch: World Report 2010 38
6. Human
Rights Watch – “Welcome to Kenya”: Police Abuse of
Somali Refugees 39
7. International
Displacement Monitoring Centre – Somalia: Political and
security crises, access limits and donor cuts increasing IDP
vulnerability (10 December 2009) 40
8. The
World Food Programme (“WFP)” 42
9. Médicins
Sans Frontières (MSF) 43
F. Recent news
reports 44
THE
LAW 45
I. ALLEGED
VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 45
A. Admissibility 46
1. The
parties’ submissions 46
2. The
Court’s assessment 47
B. Merits 49
1. General
principles applicable in expulsion cases 49
2. The
relationship between Article 3 of the Convention and article 15(c)
of the Qualification Directive 51
3. The
weight to be attached to the report of the fact-finding mission to
Nairobi (see paragraph 80, above) 53
4. The
security situation in Mogadishu 55
5. Conditions
in southern and central Somalia (outside Mogadishu) 59
6. Summary
of the Court’s conclusions 70
7. Application
of the aforementioned principles to the applicants’ cases 71
II. APPLICATION OF
ARTICLE 41 OF THE CONVENTION 74
A. Damage 74
B. Costs and
expenses 74
C. Default
interest 75
III. RULE 39 OF
THE RULES OF COURT 75
FOR
THESE REASONS, THE COURT UNANIMOUSLY 75
In the case of Sufi and
Elmi v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
Sverre Erik
Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Vincent A. De Gaetano, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 14 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 8319/07 and 11449/07)
against the United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Somali nationals, Mr Abdisamad Adow Sufi
and Mr Abdiaziz Ibrahim Elmi (“the applicants”), on 21
February 2007 and 14 March 2007 respectively.
The
applicants, who had been granted legal aid, were represented by Ms N.
Mole of the Aire Centre, a lawyer practising in London. The United
Kingdom Government (“the Government”) were represented by
their Agent, Mr D. Walton of the Foreign and Commonwealth Office.
The
applicants alleged that if returned to Somalia they would be at real
risk of ill-treatment contrary to Article 3 and/or a violation of
Article 2 of the Convention. They also complained that their removal
would disproportionately interfere with their rights under Article 8
of the Convention.
On
23 February 2007 and 14 March 2007 the Acting President of the
Chamber to which the cases were allocated decided to apply Rule 39 of
the Rules of Court, indicating to the Government that it was
desirable in the interests of the parties and the proper conduct of
the proceedings that the applicants should not be expelled to Somalia
pending the Court’s decision. The Court also decided to grant
priority to the applications under Rule 41 of the Rules of Court.
5. On
23 February 2007 and 26 March 2007 the Acting President of the Fourth
Section decided to give notice of the applications to the Government.
It was also decided to rule on the admissibility and merits of the
applications at the same time (Article 29 § 1).
6. The
applicants and the Government each filed observations on the
admissibility and merits of the case (Rule 59 § 1).
At
the Government’s request the cases were adjourned on 7 October
2008 pending the decision of the Court of Appeal in HH (Somalia),
AM (Somalia), J (Somalia) and MA (Somalia) v Secretary of State
for the Home Department [2010] EWCA Civ 426. The adjournment was
lifted when the Court of Appeal delivered its judgment on 23 April
2010.
8. The
applicants and the Government each filed further observations in
October 2010.
9. The
Chamber decided to join the applications (Rule 42 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
facts of the case, as submitted by the applicants, may be summarised
as follows.
A. The first applicant
The
first applicant, Mr Abdisamad Adow Sufi, is a Somali national who was
born in 1987 and is currently in detention in an
Immigration Detention Centre in West Drayton.
On
30 September 2003 he entered the United Kingdom clandestinely using
false travel documents. On 3 October 2003 he claimed asylum on the
ground that as a member of the Reer-Hamar, a sub-clan of the minority
Ahansi clan, he had been subjected to persecution by Hawiye militia,
who had killed his father and sister and seriously injured him. As a
consequence, he had no surviving relatives in Somalia.
On
15 April 2005 the Secretary of State for the Home Department refused
the first applicant’s asylum application, finding, inter
alia, that the fact he had remained in Somalia until 2003
undermined his claim to be a member of a minority clan. On 16 May
2005 he appealed against the refusal of the application on both
asylum and human rights grounds, namely Articles 2 and 3 of the
Convention. On 29 June 2005 both the asylum appeal and the human
rights appeal were dismissed by an Adjudicator who found that his
account of what had happened to him in Somalia was not credible.
On
7 October 2005 the first applicant pleaded guilty to two offences of
burglary, five offences of dishonestly obtaining goods by deception
and one offence of attempting to dishonestly obtain goods by
deception. On 29 November 2005 he was sentenced to 18
months’ imprisonment. On 14 February 2006 he was
convicted, inter alia, of threats to kill and was sentenced to
a further six months’ detention at a Young Offender
Institution. He was later sentenced to three months’
imprisonment following a conviction for indecent exposure in October
2007 and to thirty-two months’ imprisonment following a
conviction for five counts of burglary and theft and two counts of
attempted burglary in July 2009.
On
15 July 2006 the first applicant was served with a decision to make a
deportation order, in which the Secretary of State noted the
seriousness of his offences and the need to protect the public from
serious crime and its effects. He also noted that he was 19 years of
age, in good health and single. Although he had been resident in the
United Kingdom for almost two years, he had spent his youth and
formative years in Somalia. In the circumstances, it would not be
unreasonable to expect him to readjust to life there. The Secretary
of State for the Home Department also considered Article 8 of the
Convention but concluded that the first applicant’s deportation
would not constitute a disproportionate interference with his right
to respect for his family and private life.
On
4 September 2006 his appeal against the Secretary of State’s
decision was rejected by an Immigration Judge. On 1 November 2006 a
deportation order against the first applicant was signed and an
application for judicial review of the deportation decision was
refused in January 2007.
On
27 February 2007 the Court granted the first applicant interim
measures under Rule 39 of the Rules of Court to prevent his removal
to Somalia prior to the Court’s consideration of his
application.
B. The second applicant
The
second applicant, Mr Abdiaziz Ibrahim Elmi, is a Somali national who
was born in 1969 and is currently detained in an Immigration
Detention Centre.
He
was born in Hargeisa, which is now the capital of the self declared
state of Somaliland. When he was two years of age, his family moved
to Mogadishu and he never returned to the north of the country.
His
father, a high-ranking officer in the army during the Barré
regime, was appointed to the Somali Embassy in London as a military
attaché in 1988. The second applicant joined him in the United
Kingdom on 18 October 1988 and was given six months’ leave
to enter. On 1 March 1989 his father died. On 26 April
1989 the second applicant made an application for asylum based on his
father’s position in the Somali army and the beginning of the
civil war in Somalia. On 31 October 1989 he was recognised as a
refugee and granted leave to remain until 31 October 1993.
On 7 January 1994 he was granted Indefinite Leave to Remain in the
United Kingdom.
The
second applicant was convicted of a road traffic offence in
June 1992. On 8 March 1996 he was sentenced to a total of five
years and six months’ imprisonment by a Crown Court for
handling stolen goods, obtaining property by deception, robbery and
possessing an imitation firearm while committing an offence. On 13
November 2000 he was convicted of perverting the course of justice
and sentenced to three months’ imprisonment. In the same year
he was convicted on further counts of theft and road traffic
offences. On 16 March 2001 he was convicted of theft by a
Magistrates’ Court and placed on a curfew. On 7 June 2001 he
was again convicted of theft and sentenced to 3 months’
imprisonment. On 23 May 2002 he was convicted by a
Crown Court on eight counts of supplying class A drugs (cocaine and
heroin) and on 7 November 2002 he was sentenced to 42 months’
imprisonment. On an unspecified date the second applicant was
released on licence. On 21 June 2004 he was sentenced to 12
months’ imprisonment by a Crown Court for burglary and theft.
On
21 June 2006 a decision was made to issue a deportation order by
virtue of section 3(5) of the Immigration Act 1971 and the second
applicant was invited to rebut the presumption that his continued
presence in the United Kingdom constituted a danger to the community.
He
accepted that he was a drug addict but submitted that he did not
constitute a danger to the community because he had made efforts to
overcome his addiction and had recognised his past wrongdoings.
However, on 4 September 2006 the Secretary of State for the Home
Department found that he had failed to demonstrate that he would not
constitute such a danger. In respect of his rights under Articles 2
and 3 of the Convention, the Secretary of State found that even
though he had been living in the United Kingdom and could be
identified as such he would not be at risk on return to Somalia as he
was a member of the Isaaq, a majority clan. In respect of his rights
under Article 8 of the Convention, the Secretary of State accepted
that he had family ties with his three sisters and his mother in the
United Kingdom but did not consider that these relationships
constituted family life for the purposes of Article 8 as there was no
evidence of dependency going beyond the normal emotional ties. The
Secretary of State therefore concluded that his removal would not
violate Articles 2, 3 or 8 of the Convention.
On
27 October 2006 the second applicant’s appeal against the
decision of the Secretary of State for the Home Department was
refused by the Asylum and Immigration Tribunal (“AIT”),
which considered that he could obtain clan protection in any part of
Somalia as he was a member of a majority clan. Although the AIT
accepted that he would not find support in relation to his drug
dependency in Somalia, it found that this did not suffice to rebut
the presumption in favour of deportation. As to his Article 8 claim,
the second applicant had not shown that family life existed amongst
his adult siblings and, even if it did, he had not shown that his
circumstances were “truly exceptional so that his removal would
violate his Article 8 rights”. Finally, the AIT noted that the
sale of drugs posed a danger to the community and there was a real
likelihood of the second applicant re offending.
A
deportation order against the second applicant was signed on
8 January 2007 and on 6 March 2007 he was served with removal
directions. On 14 March 2007 he requested, and was granted, interim
measures under Rule 39 of the Rules of Court to prevent his removal
before his application was considered by the Court.
On
3 March 2008 the second applicant was convicted of possession of a
Class A controlled drug with intent to supply and was sentenced to
eighteen months’ imprisonment. On 8 July 2010 he was again
charged with possession of a Class A drug with intent to supply. A
hearing has not yet taken place.
II. RELEVANT DOMESTIC LAW AND PRACTICE
At
the material time, following the refusal of an asylum application by
the Secretary of State for the Home Department, an applicant had a
right of appeal to the Asylum and Immigration Tribunal (“the
AIT”). Section 103A of the Nationality, Immigration and Asylum
Act 2002 (as inserted by section 81(6) of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004) provided that a party to an
appeal to the AIT could apply for an order that the AIT reconsider
its decision on appeal on the ground that it had made a material
error of law.
Once
the appeal process against the refusal of an asylum application had
been exhausted, an applicant could continue to make further
submissions to the Secretary of State for the Home Department.
Paragraph 353 of the Immigration Rules (HC 395, as amended by HC
1112) stated that:
“When a human rights or asylum claim has been
refused and any appeal relating to that claim is no longer pending,
the decision maker will consider any further submissions and, if
rejected, will then determine whether they amount to a fresh claim.
The submissions will amount to a fresh claim if they are
significantly different from the material that has previously been
considered. The submissions will only be significantly different if
the content:
(i) had not already been considered; and
(ii) taken together with the previously considered
material, created a realistic prospect of success, notwithstanding
its rejection.”
Where
a person was not granted leave to enter the United Kingdom, he or she
could be subject to administrative removal pursuant to paragraph 8 of
Schedule 2 of the Immigration Act 1971. Pursuant to section 3(5) of
the 1971 Act, the Secretary of State also had power to deport any
person who was not a British citizen on the ground that his
deportation would be “conducive to the public good”.
III. RELEVANT EUROPEAN UNION LAW
Council
Directive 2004/83/EC of 29 April 2004 on minimum standards for the
qualification and status of third country nationals or stateless
persons as refugees or as persons who otherwise need international
protection and the content of the protection granted (“the
Qualification Directive”) has the objective, inter alia,
of ensuring European Union (“EU”) Member States apply
common criteria for the identification of persons genuinely in need
of international protection (recital six of the preamble).
In addition to regulating refugee status, it makes provision for
granting subsidiary protection status. Article 2(e) defines a person
eligible for subsidiary protection status as someone who would face a
real risk of suffering serious harm if returned to his or her country
of origin. Serious harm is defined in article 15 as consisting of:
(a) death penalty or execution; (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.
On
17 October 2007 the Dutch Administrative Jurisdiction Division of the
Council of State (Afdeling Bestuursrechtspraak van de Raad van
State), when considering the case of M. and N. Elgafaji v.
Staatssecretaris van Justitie (the Deputy Minister of Justice),
lodged a reference for a preliminary ruling with the European Court
of Justice (“ECJ”) asking, inter alia, whether
article 15(c) of the Directive offered supplementary or other
protection to Article 3 of the Convention.
The
ECJ held that article 15(c) protection went beyond that of Article 3
of the Convention, which was covered by article 15(b) of the
Qualification Directive. The ECJ summarised the criteria to be
applied as follows:
“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, and 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 ... 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.”
In
QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620 the Court of Appeal observed that the ECJ in Elgafaji
had not introduced an additional test of exceptionality, but had
simply stressed that not every armed conflict or violent situation
would attract the protection of article 15(c). A conflict or violent
situation would only attract the protection of article 15(c) where
the level of violence was such that, without anything to render them
a particular target, civilians faced real risks to their lives or
personal safety.
More
recently, in the case of HM and Others (Article 15(c)) Iraq CG
[2010] UKUT 331, the Upper Tribunal (Immigration and Asylum Chamber)
did not consider it helpful to attempt to distinguish between a real
risk of civilian deaths as a result of targeted attacks and a real
risk as a result of incidental attacks. In the Tribunal’s
opinion, the nexus between the generalised armed conflict and the
indiscriminate violence posing a real risk to life and person was met
when the intensity of the conflict involved means of combat, whether
permissible under the laws or not, that seriously endangered
non-combatants as well as to result in such a general breakdown of
law and order as to permit anarchy and criminality occasioning the
serious harm referred to in the Directive.
IV. RELEVANT PRINCIPLES OF INTERNATIONAL PROTECTION
It
is a well-established principle that persons will generally not be in
need of asylum or subsidiary protection if they could obtain
protection by moving elsewhere in their own country. This principle
is reflected both in article 8 of the Qualification Directive and
paragraph 339O of the Immigration Rules HC 395 (as amended), both of
which provide that an applicant is not in need of international
protection if there is a part of the country of origin where there is
no well-founded fear of persecution or real risk of suffering serious
harm, and where the applicant can reasonably be expected to stay.
In
the cases of Januzi, Hamid, Gaafar and Mohammed v Secretary of
State for the Home Department [2006] UKHL 5 and AH (Sudan)
v Secretary of State for the Home Department [2007] UKHL 49
the House of Lords held that the decision-maker, taking account of
all relevant circumstances pertaining to the applicant and his
country of origin, must decide whether it is reasonable to expect the
applicant to relocate or whether it would be unduly harsh to expect
him to do so. In this regard, the relevant comparison was between the
conditions which prevailed in the place of relocation and those which
prevailed elsewhere in the country of his nationality, including in
his former place of habitual residence. If the applicant could live a
relatively normal life in the place of relocation, judged by the
standards which prevailed in his country of nationality generally,
and if he could reach the less hostile part without undue hardship or
undue difficulty, it would not be unreasonable to expect him to move
there. However, the more closely the persecution was linked to the
State, and the greater the control of the State over those acting or
purporting to act on its behalf, the more likely (other things being
equal) that a victim of persecution in one place would be similarly
vulnerable in another place within the same State.
V. RELEVANT INFORMATION ABOUT SOMALIA
A. Factual background
The
factual background to the conflict in Somalia, as described in the
country reports at paragraphs 80 – 188 below and subsequently
agreed by the parties, is as follows.
Somalia
is comprised of three autonomous areas: the self-declared Republic of
Somaliland in the north west, the state of Puntland in the north
east, and the remaining southern and central regions. Somali society
has traditionally been characterised by membership of clan families,
which are subdivided into clans and sub-clans. The four majority
clans are Darod, Hawiye, Isaaq and Dir. In addition there are a
number of minority groups, which are also divided into sub-groups.
The Digli and Mirifle take an intermediate position between the
majority clans and the minority groups.
Somalia
has been without a functioning central government since the overthrow
of President Siad Barre by opposing clans in 1991. The clans could
not agree on a replacement and lawlessness, civil conflict and clan
warfare followed. Mogadishu was fragmented into rival, clan-based
factions and control of the city was divided among warlords. The
Transitional Federal Government was established in October 2004 but a
combination of internal divisions within the Transitional Federal
Government and insecurity in central and southern Somalia hindered it
from becoming a functioning Government. In June 2006 the Union of
Islamic Courts, a union of various Sharia courts, took control of
Mogadishu. Following a period of fighting against a coalition of
warlords called the Alliance for the Restoration of Peace and
Counter-Terrorism, the Union of Islamic Courts took control of most
of central and southern Somalia. United Nations Security Council
Resolution 1725 (2006) authorised the deployment of an African Union
and Intergovernmental Authority on Development force to protect the
Transitional Federal Government. Ethiopian ground and air forces also
moved into Somalia to support the Transitional Federal Government and
by late December 2006 the Union of Islamic Courts had been ousted
from Mogadishu and much of southern Somalia. Remnants of the Union of
Islamic Courts withdrew to the southern reaches of the Lower Juba
region where they continued to fight against the Transitional Federal
Government and Ethiopian troops.
After
the fall of the Union of Islamic Courts, the semblance of order and
security that it had created in Mogadishu deteriorated. Roadblocks
and checkpoints returned, as did banditry and violence. Furthermore,
attacks by anti-government elements on Transitional Federal
Government and Ethiopian forces continued in Mogadishu, with
civilians frequently caught up in the fighting. Homes and public
infrastructure were destroyed and a significant part of the civilian
population was displaced. The fall of the Union of Islamic Courts
also bought to the fore some of the inter- and intra-clan rivalries
that had been suppressed during the conflict and serious clan related
fighting ensued.
In
2007 the Alliance for the Re-Liberation of Somalia was created when
Somali Islamists and opposition leaders joined forces to fight the
Transitional Federal Government and Ethiopian forces.
On
20 August 2008 the Transitional Federal Government and the opposition
Alliance for the Re-Liberation of Somalia signed a ceasefire
agreement in Djibouti. At the same time, the United Nations Security
Council extended the mandate of the African Union peacekeeping
mission in Somalia. However, the Islamic insurgents at the heart of
the escalation in violence were not party to the ceasefire agreement,
and instead indicated that they would continue to fight until
Ethiopian forces withdrew from Somalia.
By
late 2008 Islamist insurgents, including a group called al Shabaab,
had regained control of most of southern Somalia.
Somalia’s
Parliament met in Djibouti in January 2009 and swore in 149 new
members from the Alliance for the Re-Liberation of Somalia. The
Parliament also extended the mandate of the Transitional Federal
Government for another two years and installed moderate Islamist
Sheikh Sharif Sheikh Ahmad as the new President.
Ethiopia
pulled its troops out of Somalia in January 2009. Soon after,
al-Shabaab took control of Baidoa, formerly a key stronghold of the
Transitional Federal Government. In May 2009 Islamist insurgents
launched an attack on Mogadishu, prompting President Ahmad to appeal
for help from abroad.
In
October 2009 al-Shabaab consolidated its position as the most
powerful insurgent group by driving its main rival, Hizbul Islam, out
of the southern port city of Kismayo. Since then it has openly
declared its alliance with al-Qaeda and has been steadily moving
forces up towards Mogadishu.
In
December 2010 Hizbul Islam and al-Shabaab merged.
B. Parties to the conflict
1. The Transitional Federal Government
The
Transitional Federal Government is recognised by the United Nations
and almost all key foreign powers as the legitimate government of
Somalia. However, it currently controls only a small section of
Mogadishu centred on the port, the airport and the presidential
palace. It is largely dependent on African Union troops for its
survival.
2. African Union Mission in Somalia (AMISOM)
AMISOM
is an African Union force authorised by the UN Security Council and
deployed to Mogadishu to support the Transitional Federal Government.
It currently consists of 5,300 Ugandan and Burundian troops.
3. Ethiopian forces
Ethiopian
forces joined the conflict in 2006 to help drive out the Union of
Islamic Courts. They remained in Somalia until their withdrawal at
the beginning of 2009.
4. Al-Shabaab
Al-Shabaab
began as part of the armed wing of the Union of Islamic Courts. When
the 2006 Ethiopian military intervention sent the leaders of the
Union of Islamic Courts into exile, a hard core of al-Shabaab
fighters remained in Somalia to fight. In their April 2010 report,
“Harsh War, Harsh Peace”, Human Rights Watch indicated
that al-Shabaab was an alliance of factions rather than a single
entity, but the group’s diverse leaders had a common agenda:
defeating AMISOM and the Transitional Federal Government and
extending Sharia law across Somalia. Some of its leaders have links
with al-Qaeda although the extent of al-Qaeda’s influence over
al-Shabaab remains unclear.
Al-Shabaab
has emerged as the most powerful and effective armed faction on the
ground, especially in southern Somalia. They have received material
support from the Eritrean government, which is eager to undercut
Ethiopia’s interests in the region. By the end of 2009
al-Shabaab controlled more territory than any other faction in
Somalia, including Baidoa, the former seat of the Transitional
Federal Government parliament, Jowhar, which had been one of the
Transitional Federal Government President’s most reliable
strongholds, and the strategic port of Kismayo.
Al-Shabaab
claimed responsibility for twin suicide bombings in the Ugandan
capital Kampala on 11 July 2010, which killed 79 people watching the
World Cup soccer final on television. It was al-Shabaab’s first
attack outside Somalia and heightened concerns about its ability to
carry out more attacks in the region and beyond.
5. Hizbul Islam
Hizbul
Islam is another armed group which has both a Sharia agenda and the
goal of driving AMISOM and the Transitional Federal Government from
Mogadishu. In early 2009 it entered into an alliance with al-Shabaab
but the alliance came to an end in October 2009 during the fight for
Kismayo. In December 2010, however, it once again merged with
al Shabaab.
6. Ahlu Sunna Waljamaca
Ahlu
Sunna Waljamaca is an Islamist group which professes to support a
more moderate agenda. The group exists primarily in central Somalia,
where it has maintained control over large strips of territory,
predominantly in Galgadud and Hiran regions.
In
February 2010 Ahlu Sunna Waljamaca signed a power-sharing and
military unification pact with the Transitional Federal Government,
although at times relations between the two groups were strained.
VI. RELEVANT CASE LAW
A. NM and others (Lone women – Ashraf) Somalia
CG [2005] UKAIT 00076
In
NM and others (Lone women – Ashraf) Somalia CG [2005] UKAIT 00076 the AIT found that conditions in southern Somalia and
particularly in and around Mogadishu were such that both men and
women from minority clans were in danger of Article 3 ill-treatment
and should be regarded as refugees in the absence of evidence of a
clan or personal patron which could protect them. Men and women from
majority clans were not likely to be in need of international
protection, although individual circumstances required separate
consideration. Although women were at greater risk than men, they
would not be able to show that, simply as lone female returnees from
the United Kingdom, they had no place of clan safety. Finally, the
AIT held that the general conditions of life or circumstances in
Somalia did not engage the obligations of the Refugee Convention or
engage Article 3 of the Convention for all female returnees. A
differential impact had to be shown. Being a single woman was not of
itself a sufficient differentiator.
The
AIT observed in passing that, on the strength of the background
evidence and the expert evidence given at the hearing, it would
consider that any person at real risk on return of being compelled to
live in an IDP camp would have little difficulty in making out a
claim under Article 3, if not under the Refugee Convention.
B. HH & Others (Mogadishu: armed conflict: risk)
Somalia CG [2008] UKAIT 00022
In
HH & others (Mogadishu: armed conflict: risk) Somalia CG
[2008] UKAIT 00022 the Asylum and Immigration Tribunal held that for
the purposes of article 15(c) of the Qualification Directive, a
situation of internal armed conflict existed in Mogadishu. The AIT
held, however, that while all sides to 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 and, as a
consequence, a person would not be at real risk of serious harm by
reason only of his or her presence in that zone or area.
The
AIT found that although clan support networks were strained, they had
not yet collapsed. Majority clans continued to have arms, even though
their militias no longer controlled the city. 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. 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 likely event of being displaced. Members of minority
groups found it harder to flee and move around to escape fighting,
because they were not so easily accepted in new surroundings. The AIT
found that persons displaced from their home in Mogadishu without
being able to find a place elsewhere with clan members or friends
would likely have to spend a significant period of time in a
makeshift shelter, such as those along the road to Afgooye, or in an
IDP camp, and could well experience treatment proscribed by Article 3
of the Convention.
Finally,
the AIT held that the issue of whether a person from a minority clan
would be able to find majority clan support would often need specific
and detailed consideration. The evidence suggested that certain
minority groups could be accepted by the majority clan of the area in
question, so as to call on protection from that clan. On the current
evidence, it might not be appropriate to assume that a finding of
minority group status in southern Somalia was in itself sufficient to
entitle a person to international protection, particularly where a
person’s credibility was otherwise lacking.
C. AM & AM (armed conflict: risk categories)
Somalia CG [2008] UKAIT 00091
In
its most recent Somali Country Guidance determination, the Asylum and
Immigration Tribunal found that since its decision in HH there
had been a number of significant changes in Somalia.
First,
the AIT found that by mid-2008 the armed conflict had spread beyond
Mogadishu and its environs. The AIT therefore found that a situation
of internal armed conflict existed throughout central and southern
Somalia. In respect of the intensity of the violence, the AIT noted
that “manifestly all significant armed parties to the conflict
have engaged in indiscriminate attacks”. In particular, it
noted that the Ethiopians were reported to have used means of war
(firing inherently indiscriminate Katyusha rockets in urban areas)
and methods of warfare (using mortars and indirect weapons without
guidance in urban areas) that violated International Humanitarian
Law. The TGF were reported to have engaged in aggression against
civilians and to have acted “as if they believe that they are
immune from accountability, investigation or prosecution, including
for crimes under international law”. Moreover, reports
indicated that insurgents had perpetrated raids, robberies and other
abuses against civilians, including rape and other forms of sexual
violence. The AIT referred to information received from the
Inter-Agency Standing Committee (“IASC”) which expressed
concerns about:
“indiscriminate bombardment of civilian areas;
indiscriminate use of roadside bombs and mortars from and in civilian
areas; indiscriminate shooting in response to roadside bombs;
arbitrary arrest and detention of civilians, including children;
forced evictions; forced recruitment, including of children; sexual
and gender based violence; intimidation and assassination of
journalists, aid workers and civilian officials; and extra-judicial
killings.”
The
AIT also noted that the worsening security situation was coupled with
a deteriorating humanitarian situation. It observed that between
400,000 and 750,000 people had been displaced from Mogadishu and that
there had been significant displacements from other towns to which
armed clashes had spread. The AIT also observed first, that IDPs
experienced serious problems while on the move, which included
checkpoints, threats, intimidation, looting, rape, abduction and
harassment; secondly, that many did not end up in camps or makeshift
settlements and consequently struggled to obtain shelter, food, water
and sanitation; and thirdly, that the effect of displacement appeared
to reduce the ability of IDPs to count on protection from their own
clan: even where they fled to a traditional area for their clan, the
pressures of numbers and scarce resources could mean that newcomers
were not supported or absorbed by the local community.
With
regard to the situation in Mogadishu, the AIT considered that:
“the movements of population out of Mogadishu in
the past two years have been unprecedented. UN sources have estimated
(at various times) that 400,000, up to as many as 750,000 (or around
one third to a half), of the population of Mogadishu have been
displaced. An 8 April 2008 Voice of America report states that two
thirds of Mogadishu has been turned into an urban battleground. Since
the beginning of 2008 there have been significantly fewer returns.
Whatever the precise figures, it is clear that the ongoing violence
has forced substantial numbers to flee the city more than once and
flight seems an ongoing process: the IRIN report of 29 September 2008
cites Elman estimates that 18,500 people recently fled their homes
due to the fighting and shelling (COIS, A 4). The COIS Reply dated 24
October 2008 states that: “[a]ccording to the UNHCR an
estimated 5,500 people were displaced from the city during the week
and over 61,000 since 21 September 2008”. Armed clashes have
increasingly destroyed housing, market areas (Bakara market has been
deliberately shelled) and infrastructure and the recent closure of
the airport is likely to make matters in Mogadishu worse. According
to Grayson and Munk, the aid community has been largely ineffective
in providing the necessary aid to those who have stayed in Mogadishu
(Nairobi evidence 65). They also state that Mogadishu is a “ghost
town” and that only the most vulnerable remain there.”
It
concluded that since HH the situation in Mogadishu had changed
significantly, both in terms of the extent of population displacement
away from the city, the intensity of the fighting and the security
conditions there. On the available evidence the AIT considered that
Mogadishu was no longer safe as a place to live for the great
majority of its citizens. It did not rule out that there might be
certain individuals who on the facts might be considered to be able
to live safely in the city, for example if they had close connections
with powerful actors in Mogadishu, such as prominent businessmen or
senior figures in the insurgency or in powerful criminal gangs.
However, barring cases of this kind, in the case of persons found to
come from Mogadishu who were returnees from the United Kingdom, the
AIT found that they would face on return a real risk of persecution
or serious harm and it was reasonably likely, if they tried staying
there, that they would soon be forced to leave or that they would
decide not to try to live there in the first place.
Nevertheless,
the AIT were not persuaded that the situation in central and southern
Somalia had reached the threshold where civilians per se or
Somali civilian IDPs per se could be said to face a real risk
of persecution, serious harm or treatment proscribed by Article 3 of
the Convention. First, although the levels of violence had increased
in intensity, the numbers of those killed and wounded was not of
great magnitude. Secondly, while the humanitarian situation was dire,
it did not appear that civilians per se faced a real risk of
denial of basic food and shelter and other bare necessities of life.
Thirdly, while there was evidence of attacks on IDPs, in view of the
huge numbers of people displaced (over a million according to some
reports), it appeared that the great majority of IDPs were able to
travel and subsist in IDP camps or settlements without serious
setbacks.
Rather,
the AIT assessment of the extent to which IDPs would face greater or
lesser hardships, at least outside Mogadishu, would vary depending on
a number of factors. In particular, the AIT noted that IDPs from more
influential clans appeared to have a better chance of being tolerated
in the area to which they fled; IDPs with a traditional clan area
that they could travel to, especially if they had close relatives or
close clan affiliations in that area, appeared to have better
prospects of finding safety and support (although not if the area
concerned was already saturated with fellow IDPs); those who lacked
recent experience of living in Somalia appeared more likely to have
difficulty dealing with the changed environment in which clan
loyalties had to some extent fractured; persons returning to their
home area from the United Kingdom could be perceived as having
relative wealth and might be more susceptible to extortion, abduction
and the like; those who lived in areas not particularly affected by
the fighting and which were not seen as strategically important to
any of the main parties to the conflict would appear less subject to
security problems; women and girls faced the additional risks of
rape, abduction and harassment; the prevailing economic conditions in
the area would also be relevant, bearing in mind Somalia’s
history of droughts, poor harvests and rising food prices.
The
AIT recognised that there had been a significant change in the
clan-based character of Somali society since HH was
promulgated. Clan protection was not as effective as it had been in
the early 1990s and conflicts over scarce resources had complicated
the situation and made it unpredictable. This did not mean, however,
that the clan or sub-clan had ceased to be the primary entity to
which individuals turned for protection.
As
regards internal relocation, whether those whose home area was
Mogadishu (or indeed 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 had to live in an IDP camp would be
an important but not necessarily a decisive factor.
The
AIT considered the safety of en route travel from Mogadishu
International Airport, which was the point of return for anyone being
removed to central and southern Somalia. The AIT noted that:
“The airport is
one of the facilities patrolled by AMISON troops (COIS, 27.13).
According to Somalia Humanitarian Overview, September 2008, normally
at least 5 commercial flights arrive and depart on a weekly
basis to and from the rest of Somalia, Kenya, Djibouti and Dubai. The
COIS Reply of 24 October 2008 notes that it is expected in the next
month or so that thousands will leave via MIA to perform Haj in Saudi
Arabia. At the time of HH, the airport was fully operational with
flights arriving and departing regularly. However in 2008 the
situation has been unsettled. There were attacks of some kind in
January 2008 and the downing of a plane by a
missile in
March 2008 (COIS, 27.13). The airport was attacked by insurgents on
1 June 2008 as the President’s plane left for talks in
Djibouti. On 14 September 2008 a group identifying themselves as Al
Shabab threatened to shut the airport down, although a counter-report
from Union of Islamic Courts said that the Islamist forces did not
intend to close it. It was closed on 16 September. On 28 September
there were mortar attacks on it upon the arrival of an AMISON
military plane (COIS, A.2). A Press TV cutting dated 2 October
2008 states that 5 heavy mortars landed inside MIA injuring a number
of soldiers. The assailants apparently targeted a plane trying to
land. A COIS Reply dated 15 October 2008 reports an Al Shabab source
as saying that on 9 October a civilian plane carrying 120 Somali
deportees from Saudi Arabia managed to land without incident. A 13
October press report refers to several mortar attacks on the airport.
We were told by the respondent at the outset of the hearing that
removals to Somalia were temporarily suspended because of travel
documentation problems, but it may well be, in the light of these
recent developments, that for the immediate future at least, there
would be difficulties in ensuring safe arrival in any event.”
In
HH the AIT had concluded that those moving around Mogadishu
and the environs would in general not be at risk of serious harm at
checkpoints, although it left open the possibility that the situation
might be different if a person were likely to encounter a
non-Transitional Federal Government checkpoint alone, without
friends, family or other clan members. However, in AM the AIT
noted that from the second half of 2007 United Nations Office for the
Co-ordination of Humanitarian Affairs estimate of the number of
roadblocks/checkpoints in central and southern Somalia showed an
increase from 238 in July 2007 to 400 in July 2008 and considerably
more than half were under the control of insurgents. Nevertheless,
while the AIT found that the Transitional Federal Government appeared
by and large to have lost control of many of the roadblocks and
checkpoints in central and southern Somalia, the evidence continued
to indicate that they retained control of the main road from the
airport into Mogadishu. While there was some evidence that the road
came under attack from insurgents on a daily basis, there was clearly
a great deal of ongoing movement of people along the roads in central
and southern Somalia and in and around the airport and the AIT did
not consider that the available evidence demonstrated a real risk en
route of persecution or serious harm for travellers from the
airport to Mogadishu.
D. HH (Somalia), AM (Somalia), J (Somalia) and MA
(Somalia) v Secretary of State for the Home Department
[2010] EWCA Civ 426
One
of the applicants in HH and one of the applicants in AM
were granted leave to appeal to the Court of Appeal. Their appeals
were joined to those of two other Somali applicants.
HH
contended that the AIT had erred in its application of the provisions
of article 15(c) of the Qualification Directive as it had held first,
that the notion of an “individual threat” required a
“differential impact ” and secondly, that article 15(c)
did not add anything to Articles 2 and 3 of the Convention. Before
the Court of Appeal, the Secretary of State for the Home Department
accepted that the AIT had erred in its interpretation of article
15(c), but submitted that the error was not material. The Court of
Appeal held that if the correct (post-Elgafaji) approach to
article 15(c) had been applied to the facts found by the AIT, it was
inevitable that it would have found that the population of Mogadishu
as a whole was not subject to such a high level of indiscriminate
violence as to justify the conclusion that merely to be there
attracted entitlement to subsidiary protection. Consequently, the
Court of Appeal dismissed HH’s appeal on the ground that the
error of law was not material.
The
AIT had accepted that AM was from Jowhar. It noted that there was no
longer any significant fighting there but accepted that there was
evidence that en route
travel to Jowhar was hazardous. Nevertheless, the AIT held that it
was not empowered to consider the risk faced in making the journey:
rather, it was for the Secretary of State for the Home Department, in
finalising the removal arrangements, to satisfy herself that there
would be safe en route
travel for AM. AM appealed to the Court of Appeal on the ground that
this was not a lawful approach. The Court of Appeal allowed the
appeal, finding that in any case in which it could be shown either
directly or by implication what route and method of return was
envisaged, the AIT was required by law to consider and determine any
challenge to the safety of that route or method. The AIT therefore
fell into error as it had declined to consider AM’s safety on
return. The Court of Appeal remitted the case to the AIT to consider
this issue.
J
had sought judicial review of the Secretary of State for the Home
Department’s refusal to accept as a fresh claim her submissions
about the situation facing her were she to be returned to Somalia.
The Administrative Court had held that if the removal directions had
indicated that J was expected to go by road from Mogadishu
International Airport to her home town, the evidence would have given
her a strongly arguable case for judicial review. However, as the
detail or method of return was neither clearly nor necessarily
implicit within the immigration decision, the judicial review
application had been refused. J appealed to the Court of Appeal. For
the same reasons adopted in AM’s case, the Court of Appeal
allowed the appeal. The Court of Appeal indicated (on an obiter
basis) that the Qualification Directive and the Asylum Procedures
Directive read together required that the issues of safety during
return (as opposed to technical obstacles during return) should be
considered as part of the decision on entitlement. Only technical
obstacles could legitimately be deferred to the point at which
removal directions were being made or considered. If there was a real
issue of safety on return the Secretary of State had to engage with
it in his decision on entitlement to protection. If he failed to do
so, the appeal tribunal would have to deal with the issue. In any
case, the decision on entitlement had to be made within a reasonable
time and could not be left until the Secretary of State was in a
position to set safe removal directions.
MA
appealed against the rejection of his Article 3 claims by the AIT. In
particular, he complained that the AIT had misdirected itself because
it had focused on his failure to tell the truth when it 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 on return. The
Court of Appeal accepted that the AIT had adopted the wrong approach,
apparently considering that the applicant’s lies had disabled
it from reaching a conclusion on the Article 3 risk. Had it made an
assessment on the basis of the available evidence, it would have had
to have concluded that the applicant was at risk of Article 3
ill-treatment on return. The Court of Appeal noted that following AM,
the Country Guidance relating to Mogadishu was such that most
potential returnees would be entitled to subsidiary protection under
article 15 of the Qualification Directive. It therefore followed that
only those Somalis who could get without undue risk to a place of
safety or who had access to protection against the endemic dangers
could properly be deported or returned. It was accepted that MA was
from a minority clan, that he had not been in Somalia for 15 years,
and that for much of that time he had been in detention. There was
therefore sufficient evidence before the AIT to at least establish a
real risk that he would not have the necessary contacts in Mogadishu
to afford him the necessary protection.
E. AM (Evidence – route of return) Somalia
[2011] UKUT (IAC)
In AM (Evidence – route of return) Somalia [2011] UKUT 54 (IAC) the Upper Tribunal held that the First Tier Tribunal had failed
to give adequate reasons for concluding that the applicant could
safely reach his home area of Afgooye from Mogadishu International
Airport. However, on reconsideration the Tribunal was not satisfied
that returning him would give rise to a breach of Article 3 of the
Convention. In particular, it found that travel took place with some
degree of frequency from the airport to the city of Mogadishu and
into other areas of Somalia; that as the applicant had lived in Yemen
and Saudi Arabia, he would be well able to anticipate and comply with
the requirements of al-Shabaab; that there was nothing which would
put him at any risk were he to encounter a Transitional Federal
Government checkpoint; that the evidence did not support a finding
that all men or young men were at risk of forced recruitment by
al-Shabaab; and, that as the applicant was not found to be a minority
clan member, and as his uncle had been able to fund his departure
from Somalia, he would be able to avoid foreseeable risks and pay the
relatively modest sums demanded at checkpoints.
F. Judgment
of 24 February 2011 (UM 10061-09)
of the Swedish Migration Court of Appeal (Migrationsöverdomstolen)
79. The Swedish Migration
Court of Appeal, which is the court of final instance in immigration
cases, found that a situation of internal armed conflict existed
throughout the whole of southern and central Somalia which was
sufficiently serious to expose the Somali applicant to a risk of
serious harm, even though he could not demonstrate that he would be
specifically targeted. The court had regard to many reports which
indicated that the fighting had increased in recent months and
that the situation had become very unstable and
unpredictable. Moreover, due to the worsening security situation, the
presence of the United Nations and other international organisations
had decreased and, as a consequence, detailed and updated information
was hard to come by. Although the safety level in Somaliland and
Puntland was considered to be acceptable, a Somali returnee could
only gain admittance to those areas if he was seen as belonging or
having another connection to them. As that was not the case with
the applicant, the court concluded that he could not internally
relocate and that he should thus be given a residence permit and
subsidiary protection in Sweden.
VII. RELEVANT COUNTRY INFORMATION
A. United Kingdom Government Reports
1. Somalia: Report of Fact-Finding Mission to Nairobi,
8 – 15 September 2010
The
fact-finding mission interviewed a number of anonymous sources,
including international NGOs, security advisors and diplomatic
sources, about the current security and humanitarian situation in
southern and central Somalia. In particular, the mission sought to
obtain information on which groups controlled which areas, how easy
it was to travel between different areas, the security and human
rights situation, and the conditions in the IDP camps.
Sources
indicated that control of Mogadishu was divided between the
Transitional Federal Government, backed by AMISOM troops, and
al-Shabaab. Although the sources had different views on which
groups controlled which districts, they mostly agreed that the
Transitional Federal Government controlled the airport, the seaport,
Villa Somalia and the road between the airport and Villa Somalia.
Sources
indicated that the security situation in Mogadishu was poor, with
thousands of civilians killed in the fighting between AMISOM and
al-Shabaab. Areas controlled by al-Shabaab were at risk of
shelling by AMISOM, while areas controlled by AMISOM were at risk of
shelling by al-Shabaab. All parties to the conflict were guilty of
indiscriminate shelling. Violence was sporadic and rape was an issue
in many areas. Consequently, there was a constant movement of IDPs
into and out of the city. However, one diplomatic source suggested
that it would be possible to live in
non-conflict areas of the
city, which were generally considered to be safe.
Sources
also indicated that the nature of al-Shabaab violence had become more
sophisticated over the past twelve months as foreign fighters had
brought with them new tactics and techniques. They not only carried
out targeted attacks against AMISOM troops and Transitional Federal
Government ministers and MPs, but they also carried out random
killings of civilians in Mogadishu in order to create disorder and
chaos.
The
report noted that there were regular flights into Somalia, most of
which were destined for Mogadishu International Airport. The EU
Special Representative informed the Mission that 15-18 flights
arrived in Mogadishu each day. An airplane captain working for
African Express Airways also told the Mission that his airline had
carried 12,000 passengers into Mogadishu in the first eight months of
2010.
The
road between the airport and Mogadishu was controlled by the
Transitional Federal Government with AMISOM support and these groups
managed all checkpoints along the route. It would not be particularly
dangerous for ordinary Somalis unless they found themselves “in
the wrong place at the wrong time”. However, there were reports
of a failed attack on the airport on 9 September 2010 and some
sources suggested that contacts were required in order to make the
journey from the airport. The EU Special Representative for the EU
Delegation on Somalia indicated that those members of the diaspora
who regularly travelled to Mogadishu were
well-connected and that
mobility was limited unless the individual was aligned with a
militia. Likewise, a representative from an international NGO
indicated that “any Somalis returning to Mogadishu
International Airport would need a lot of preparation and would need
to ensure they had contacts in Mogadishu”.
A
representative from one international NGO suggested that al-Shabaab
knew who was landing at the airport as they were receiving
information from Transitional Federal Government soldiers based
there.
Most
of the sources interviewed agreed that Somalis were able to move
around within Mogadishu without much restriction. Two sources
described the checkpoints in the city as “random” or
“variable” as they tended to change according to fighting
areas and the level of control of specific groups. One source
suggested that checkpoints operated by the Transitional Federal
Government or Hizbul Islam were more difficult to negotiate as they
were operated with less discipline and normally demanded money.
Al-Shabaab checkpoints normally checked that people were obeying
their code of behaviour and would therefore stop women travelling
alone. Some individuals operating these checkpoints would punish
those who were not acting according to al-Shabaab’s rules.
Contrary
to the majority opinion, the EU Special Representative informed the
fact-finding mission that all civilians in Mogadishu would either be
aligned to a militia or completely unable to get out of the town. The
Special Representative even suggested that some Somalis were unable
to leave their own district.
There
was no consensus on which groups controlled the other regions in
southern and central Somalia, although all agreed that al-Shabaab
controlled most of the land south of a line drawn between Beletweyne
and Dhusarmareb. Militias broadly aligned with the Transitional
Federal Government controlled pockets of land on the Ethiopian
border. Hizbul Islam was nominally in control of some small areas,
including parts of the Afgooye Corridor, but al-Shabaab’s
influence in these areas was significant. Finally, the region of
Galmudug was controlled by a local clan-based administration which
acted under the umbrella of Ahlu Sunna Waljamaca.
Outside
Mogadishu, people were generally permitted to travel within the areas
controlled by al-Shabaab although they could encounter difficulties
at checkpoints if they were not obeying al-Shabaab rules. Although
al-Shabaab had endeavoured to remove “illegal”
checkpoints, a number of sources indicated that some clan militia
checkpoints remained. The evidence appeared to suggest that it was
possible to negotiate the various checkpoints, although a certain
amount of risk was involved.
A
diplomatic source stated that young men travelling in al-Shabaab held
areas could be targeted by al-Shabaab for recruitment. This was
supported by an international NGO, which advised that forced
recruitment was becoming systematic. Young men were asked to register
with
al-Shabaab, including those who were stopped at checkpoints.
A
number of sources considered the areas controlled by al-Shabaab to be
stable and generally safe for those Somalis who were able to “play
the game” and avoid the unnecessary attention of al-Shabaab.
One the other hand, one international NGO believed that there were
“no safe areas in southern-central Somalia as long as
al-Shabaab and Hizbul Islam were present”. Another NGO
indicated that everywhere in southern and central Somalia had been
affected by violations of international humanitarian law and by a
situation of generalised violence and displacement over the past
three years on account of the expansion of the insurgency outside
Mogadishu. Finally, a diplomatic source stated that “everywhere
is volatile and can change at any time”.
With
regard to the human rights situation, forced recruitment of adults
and children appeared to be an emerging problem, particularly for
those displaced in the Afgooye Corridor. Sources suggested that all
parties to the conflict recruited children, although it was not
certain that the Transitional Federal Government forcibly recruited
them. Child recruitment was, however, very common in al-Shabaab
areas, as they would forcibly recruit the eldest son from local
families, some of whom were as young as ten years old. Adult males
were also forced to register with al-Shabaab in Merca and Doble.
Moreover,
the sources indicated that in al-Shabaab areas, human rights were
practically non-existent because of the organisation’s
interpretation of Sharia law, which was not in accordance with the
beliefs of ordinary Somalis. Consequently, people lived in fear as
there were serious punishments if al-Shabaab orders were not obeyed.
Women in particular were routinely targeted and were not permitted to
engage in trade. In addition, al-Shabaab had made a concerted effort
to drive NGOs out of its areas by a number of means, including
demanding payment of a “registration fee” of up to USD
15,000, looting warehouses and threatening workers. In some cases
al-Shabaab had stolen aid and confiscated the assets of NGOs to sell
for profit. There was therefore no international NGO presence in
al-Shabaab controlled areas and health and feeding programmes had
been stopped, with significant consequences for the civilian
population.
Finally,
sources were asked about the conditions in IDP camps. They indicated
that although those with resources had left Mogadishu, there were
some 250,000 people displaced within the city and no humanitarian
assistance was available to them. Estimates suggested that there were
a further 200,000 to 500,000 people in the Afgooye Corridor, which
had become increasingly urbanised. It was difficult to give an exact
number of the people based in the corridor because, due to the nature
of the fighting, a lot of people were going back and forward to
Mogadishu. Moreover, access for NGOs was difficult as the corridor
was controlled by “gatekeepers” who controlled who and
what moved into and out of the area. These “gatekeepers”
tended to be opportunists who were not aligned to any particular
group but they were able to make assistance from NGOs very difficult.
Two NGOs said that it was incredibly difficult to access the corridor
and, where access was possible, aid was often diverted. Moreover,
landlords in the area were either selling the land that the IDPs
lived on or were charging rent that they could not afford, forcing
them to move on.
One
international NGO believed that there was a hierarchy within the
camps, but did not know whether it was based on clan membership or
length of residence. Consequently, it could not be guaranteed that
majority clan members would not face problems within the IDP camps.
The
sources were not aware of any other significant IDP settlements
within Somalia.
2. United Kingdom Border and Immigration Agency
Operational Guidance Note
98. Operational
Guidance Notes (“OGNs”) are produced by the Border and
Immigration Agency of the Home Office. They evaluate the general,
political and human rights situation in a country and provide
guidance on the nature and handling of the most common type of claim.
The
OGN on Somalia of 1 July 2010 described how fighting by Transitional
Federal Government troops, allied militias, and AMISOM forces against
anti-government forces in southern and central Somalia had resulted
in widespread human rights abuses, including the killing of thousands
of civilians, the displacement of more than one million people and
widespread property damage, particularly in Mogadishu. However, a
fall in clashes between government troops and insurgents had led to a
substantial drop in the numbers of civilians killed in fighting in
Mogadishu in 2009. The Mogadishu-based Elman Peace and Human Rights
Organisation stated that 1,739 civilians were killed in fighting in
2009, down from 7,574 in 2008 and 8,636 in 2007. At least 4,911
civilians were wounded and 3,900 families displaced by clashes in
2009.
The
report noted that while Mogadishu remained the focus of the
insurgency, fighting had occurred in other parts of the country,
including Beletweyne, Kismayo, the Gedo and Bakool regions, from
Jowhar to Harardhere and around the central towns of Dhusamareb and
Beletweyne.
The
report indicated that restrictions on movement within Somalia had
reduced significantly compared to when the AIT considered the
situation in AM and AM (Somalia). In particular, checkpoints
operated by the Transitional Federal Government had decreased and
there were no reports of armed clan factions operating checkpoints in
2009. Al-Shabaab had established checkpoints at the exit/entry routes
of the towns under its control for security reasons. It checked
goods, searched people and ensured that its strict Islamic codes were
enforced, but it did not collect money. There were also reports that
Al-Shabaab had eradicated extortion, robbery and murder from bandits
in areas it controlled.
With
the exception of Mogadishu, there were no reports of checkpoints
between towns or within towns, as was common in previous years. There
were, however, several checkpoints on the route from Mogadishu
towards the Central Regions and some precautions could be necessary,
particularly during militia fighting. There was no evidence that
those not of adverse interest to the Transitional Federal Government,
al-Shabaab or groups such as Hizbul Islam or Ahlu Sunna
Waljamaca, would be unable to pass through checkpoints safely. During
overland trips clan protection was not required unless ongoing
animosities between two rival clans were involved.
Individuals would not generally need an escort, but if they
considered an escort to be necessary, it would be feasible for them
to arrange one either before or after arrival. It would therefore be
feasible for many to return to their home areas from Mogadishu
International Airport as most areas were more accessible than
previously.
The
report also noted that it was possible for Somalis to fly from
Mogadishu International Airport directly to Hargeisa, in Somaliland,
a region which was widely considered to be relatively safe. However,
the authorities in Somaliland, like the authorities in Puntland,
would only admit those who originated from the territory or those who
had close affiliation to the territory through clan membership. In
Somaliland, the majority clan was the Isaaq.
With
regard to the human rights situation, the report noted that:
“Al-Shabaab currently controls much of southern
and central Somalia, including large portions of Mogadishu. The
Transitional Federal Government has maintained control of a few areas
in the south east of the city, government installations, the
Presidential palace and strategic locations such as the airport and
seaport. Al-Shabaab controls large portions of Mogadishu including
the north and north-east parts of the city, the main stadium and the
main market. It controls nearly all of Middle and
Lower Jubba regions, Gedo region, Bay region, Bakool region, and
parts of Lower Shabelle region. This includes control of the key port
cities of Kismayo and Marka and the Kenya border town of Diif. It
also wields significant influence in Middle Shabelle and Hiraan
region.
The human rights situation has deteriorated particularly
in areas controlled by
al-Shabaab and allied extremist groups.
Al-Shabaab and other armed groups have continued to violate women’s
rights in southern and central Somalia. Women face arbitrary
detention, restriction of movement and other forms of abuse for
failure to obey orders, including non-observance of dress codes.
There is a rising pattern of inhuman and degrading treatment,
including stoning, amputations, floggings and corporal punishment.
Men too are subjected to inhuman and cruel treatment for their
illicit relationship with women and other offences such as ‘spying’.
Journalists have been repeatedly subjected to threats and short-term
arbitrary detentions, particularly in Baidoa and Kismayo. Al-Shabaab
has increasingly targeted civil society groups, peace activists,
media and human rights organisations. Humanitarian assistance has
been severely hampered by the prevailing insecurity and threats
specifically targeting humanitarian agencies. In southern and central
Somalia there is evidence that children are being exposed to
recruitment into armed forces by all parties to the conflict.”
In
respect of the humanitarian situation, the report indicated that by
November 2009 the total number of displaced persons had reached
1.55 million, 93% of whom were concentrated in southern and
central areas, including 524,000 in the Afgooye corridor. The
security situation was having a negative impact on the relief
operation. Rising threats and attacks on humanitarian operations, as
well as the imposition of demands from armed groups, had made it
virtually impossible for the World Food Programme (“WFP”)
to continue reaching people in need in southern Somalia. Inflammatory
statements by al-Shabaab against relief organisations, threats
against humanitarian staff, explicit rejection of foreign food aid
and demands for fees had all worsened.
The
report concluded that while the general humanitarian situation in
southern and central Somalia was poor, it was not so serious as to
cause, in itself, a breach of Article 3 of the Convention. Aid
agencies were subjected to obstructions and dangers in delivering aid
to IDPs but most of those in need continued to be reached and efforts
were being strengthened to sustain critical food operations in
southern and central Somalia. Each case therefore had to be
considered on its individual merits in order to assess whether, in
the particular circumstances of the case, the Article 3 threshold was
met.
B. United States’ Government Reports
1. Department of State Country Report on Human Rights
Practices, Somalia, 2009 (11 March 2010)
The
report indicated that the Transitional Federal Government’s
respect for human rights had improved. However, the poor human rights
situation in Somalia had deteriorated further during the year,
especially in the areas controlled by al-Shabaab and allied extremist
groups. Human rights abuses included unlawful and politically
motivated killings, kidnappings, torture, rape, amputations,
beatings, official impunity, harsh and life-threatening prison
conditions, and arbitrary arrest and detention.
With
regard to movement within Somalia, the report indicated that
checkpoints operated by the Transitional Federal Government and its
associated militias had decreased. According to a report by UNOCHA,
al-Shabaab established checkpoints at the exit/entry routes of the
towns under its control for security reasons. There were no reports
of checkpoints between towns or within towns, as was common in
previous years. There were also no reports of armed clan factions
operating checkpoints during the year.
2. “Somalia: Current Conditions and Prospects for
a Lasting Peace”, Congressional Research Service, 16 December
2010
The
report noted that the humanitarian situation in Somalia remained dire
as the fighting in Mogadishu had added more challenges to already
poor conditions on the ground. An estimated 1.1 million people had
been displaced and more than 475,000 had fled to neighbouring
countries in the past two years. Targeted attacks on humanitarian
groups had made delivery of assistance difficult and the Obama
Administration had suspended assistance in areas controlled by
al-Shabaab.
C. The Norwegian Directorate of Immigration Country of
Origin Centre Somalia: Security and Conflict in the South
(23 August 2010)
The
report noted that the situation in southern Somalia and in Mogadishu
in particular was unstable and the power balance in the regions,
districts and urban areas could change almost from day to day.
Consequently, information on area control could become out of date
very quickly.
It
was clear, however, that the military and political situation
remained extremely complicated. Large areas of southern Somalia were
controlled by al-Shabaab and other Islamist groups in opposition to
the authorities. Many areas of Mogadishu had been the scene of
shooting, shelling and fighting between Islamists and Government
forces supported by AMISOM. In spite of a certain amount of stability
in parts of the country, the civilian population was still the victim
of indiscriminate violence, albeit to a slightly lesser extent than
previously. Leading observers agreed that the situation was fragile
as the Islamist groups had the will and means to continue to fight,
while the Transitional Federal Government was weak and probably would
not survive without the presence of AMISOM.
The
UN Special Envoy for Human Rights, together with a number of other
international observers, noted that the arrival of foreign jihadists
in Somalia had resulted in al-Shabaab operations becoming
“professionalised”, which meant that they were
implemented with greater precision and brutality. According to a
number of observers, individual al-Shabaab cells were controlled by
foreign jihadists who did not wish for peace or to enter into any
form of dialogue with the authorities.
With
regard to the humanitarian situation, the report noted that while the
nutritional situation was expected to improve in the year ahead on
account of a good harvest, the food security situation remained poor.
Food prices were high and access to clean drinking water remained a
considerable problem.
Estimates
indicated that the total number of displaced persons in Somalia was
around 1.3 million. Resources in local areas were stretched to the
maximum as the displaced from Mogadishu sought refuge in traditional
clan areas. While clan members were prepared to share what resources
they had as far as possible, displaced persons without clan
connections did not have that safety net and were therefore in a more
difficult position. However, the report quoted the UN Special Envoy
as stating:
“Monitoring the human rights situation in south
and central Somalia remains very difficult due to the serious
constraints on gathering information owing to security conditions.
The independent expert was himself unable to visit the region.
Nevertheless, major human rights concerns have been documented and
the independent expert remains deeply concerned at the deterioration
of the situation.”
The
report noted that freedom of movement in Somalia had improved since
January 2009 and the general impression was that the population could
travel relatively freely in both government controlled areas and
areas controlled by other groups. The removal of road blocks had had
a positive effect on criminality as cases of “rape and run”
had previously been widespread in these areas. However, in spite of
the improvements, restrictions imposed by al-Shabaab on women
restricted their freedom of movement and had a negative impact on
their families, which were often dependant on women’s income
from trading.
International
organisations had increasingly been the target of violent attacks
since 2008 and, because of the safety risk, only a few international
representatives remained in southern Somalia. Like the UN and foreign
embassies, business was run from main offices in Nairobi while local
employees were responsible for work on the ground in Somalia. Local
human rights organisations could not publish detailed reports for
fear of their own safety. However, aid work in Somalia could be risky
for local employees as they were increasingly coming under attack.
In
any case, aid organisations had limited access in the areas
controlled by al-Shabaab. In January 2010 the WFP decided to suspend
its activities in the al-Shabaab controlled areas. This has had
consequences for the population in Lower Shabelle Bay, Bakool and
Gedo as access to the necessary food supplies and other aid was
limited. Moreover, at the beginning of August 2010, al-Shabaab
ordered the Adventist Development and Relief Agency, World Vision and
Diakonia out of the areas under their control on the ground that they
were operating missionary activities. With these three organisations
gone, very few international aid organisations remained in place in
southern Somalia.
With
regard to the situation in Mogadishu, the report noted that
conditions in the different areas varied and there was a difference
between the northern and southern parts of the capital. The areas of
Hodan, Hawl, Wadaag, Wardhingley, Yaqshiid, Bondheere, Shibis and
Abdulaziz were the hardest hit by shelling and attacks. To a lesser
extent, the districts of Medina, Dharkley, Hamar Weyne, Waaberi and
Hamar Jajab were also affected by the fighting. However, the report
noted that the situation was unpredictable and could easily change.
For example, the Karaan district in the north had previously been
considered relatively peaceful but was now shot to pieces and all its
inhabitants had fled.
According
to a well-informed international aid worker, ten people per week died
in Mogadishu due to fighting. It was difficult to estimate how many
of the dead were civilians. It was also difficult accurately to
estimate the number of displaced. According to the UNCHR, there were
around 370,000 displaced persons in Mogadishu and 360,000 in the
Afgooye Corridor. However, it was possible that there were great
margins of error as the UN estimates were based on satellite images
and it was thought that many houses had been built to mislead aid
organisations. Nevertheless, well-informed sources indicated that the
situation in Somalia today was much more difficult than it had been
at the beginning of the 1990s as international organisations were no
longer able to carry out their tasks. Poverty was more widespread in
Mogadishu than it had been previously and it was therefore more
difficult to help those in need. In addition, the clan system had
been weakened.
Outside
Mogadishu the fighting was mostly localised around certain key areas
and towns. Strategic towns such as Kismayo, Beletweyne and various
towns in the Galgaduud had changed hands many times in recent years
and there were also tensions in Bakool and Gedo. However, the main
challenge for most of the population of southern Somalia was
humanitarian. Fifteen percent of all children under five in southern
Somalia were malnourished and medical treatment was limited,
especially in villages, where it was estimated that there was one
doctor per 25,000 inhabitants.
D. United Nations Reports
1. The UN Secretary-General’s Reports
In
his report to the Security Council on 11 May 2010, the Secretary
General noted that there had been increased fighting in southern and
central Somalia during the first three months of 2010. Over 110,000
people had been displaced during this period. In addition to the
fighting in Mogadishu, there was also continued fighting between
al-Shabaab and Hizbul Islam in Lower Juba and Lower Shabelle, and
between al-Shabaab and Ahlu Sunna Waljamaca in the central region.
National United Nations staff faced direct threats from armed groups
in these areas and the presence of international staff in these
regions was restricted.
The
security situation continued to have a direct impact on the provision
of humanitarian aid. The report noted that on 28 February 2008
al-Shabaab called for the termination of all World Food Programme
(“WFP”) operations inside Somalia, and on 1 March 2010
and 7 April 2010 WFP compounds in Buale and Wajid were occupied by
al-Shabaab. There had been no food distribution to over 300,000 IDPs
in the Afgooye corridor since November 2009 owing to inaccessibility
and another 1.1 million intended beneficiaries were not receiving
food distributions throughout the south and central regions.
In
his report to the Security Council on 9 September 2010, the Secretary
General noted that volatility and insecurity had once again increased
in Mogadishu. AMISOM and the Transitional Federal Government
frequently engaged the insurgents in response to mortar fire and
direct attacks and military operations to secure positions in key
districts of Mogadishu led to fierce battles. Moreover, the frequency
of attacks with improvised explosive devices had led to an increase
in civilian casualties during the reporting period. According to the
World Health Organisation, approximately 1,600 civilian casualties
were admitted to the two main hospitals in Mogadishu from 20 March
2010 to 11 July 2010. That figure, which included almost 400 children
under the age of 5 and 48 registered deaths, had left Mogadishu’s
already weak health services struggling to cope with the casualties.
He also reported that beyond Mogadishu, sporadic clashes between
al-Shabaab and Ahlu Sunna Waljamaca continued in the central regions
and the continuing insecurity had hampered UN operations in Somalia
by limiting freedom of movement for UN staff and contractors. In July
2010 al-Shabaab seized the compound of the World Food Programme and
the houses of six national staff.
The
ongoing conflict, particularly in Mogadishu, had displaced 179,000
people in the first quarter and 75,000 people in the second quarter
of 2010.
125. In
the Secretary-General’s report of 9 November 2010 on children
and armed conflict in Somalia, he noted that civilians, including
children, continued to be the majority of casualties in Somalia,
primarily as a result of being caught in the crossfire between the
parties to the conflict, shelling and explosions. During 2009 3.64
million people, including approximately 1.8 million children,
relied on humanitarian assistance. However, food supplies remained
disrupted, access to clean water and medical assistance hindered, and
hospitals were stretched to capacity. As from January 2010, food
distribution by the World Food Programme was disrupted in all areas
controlled by al-Shabaab.
Moreover,
the climate of violence and impunity exacerbated grave violations of
children’s rights as individuals were taking advantage of the
lack of rule of law and the availability of arms to commit violent
crimes against children and other vulnerable members of the
population. This was borne out by evidence of rising levels of acts
of sexual violence against children. Most at risk were women and
girls living on the streets or in open and unprotected settlements
for IDPs. In addition, available information indicated that
al-Shabaab had undertaken systematic and widespread recruitment of
children for use in the conflict. Indeed, it was alleged that at the
Galduuma base between Bay and Lower Shabelle, al-Shabaab had 1,800
children, some as young as 9 years old.
In
his most recent report to the Security Council, dated 28 April 2011,
the Secretary General stated that a major military offensive against
Al-Shabaab had begun on 19 February 2011. The offensive by the Ahlu
Sunnah Wal Jama’a and other groups allied with the Transitional
Federal Government against Al-Shabaab in southern central Somalia had
focused on the Ethiopia-Kenya-Somalia border. Hostilities centred on
the Gedo, Bay and Bakool regions, with armed conflict most prevalent
in Bula Hawa and, to a lesser extent, in the vicinity of Beletweyne
and Dolo. Troops allied with the Transitional Federal Government had
taken control of the town of Dhobley, close to the Kenyan border, on
3 April 2011. Reports of heavy casualties and intensified recruitment
efforts on the part of
Al-Shabaab suggested that the group’s
capabilities might have been reduced. However, Al-Shabaab continued
to receive arms and ammunition through southern Somali ports and
acquire financial resources from extortion, illegal exports and
taxation.
2. Report of the independent expert on the situation of
human rights in Somalia, Shamsul Bari (16 September 2010)
At
the date the report was drafted, heavy fighting had again broken out
in Mogadishu and International Committee of the Red Cross reported
that hospitals were swamped with war-wounded. According to a report
by the Elman Peace Center of Somalia, in the first seven months of
2010 918 civilians died and 2,555 were injured as a result of
the increased fighting and shelling. While most casualties appeared
to have been the result either of attacks by al-Shabaab and its
allies against Transitional Federal Government and AMISOM forces or
retaliatory attacks by AMISOM, direct fighting between Islamists such
as Ahlu Sunna Waljamaca and al-Shabaab combined with inter-clan
clashes in central Somalia also contributed to the high number of
deaths. In addition, reports indicated that parties to the conflict
had failed to adhere to the principles of international humanitarian
law relating to the protection of civilians as hostilities had been
waged in urban areas and precautionary measures to avoid civilian
casualties had been disregarded.
With
regard to the human rights situation in areas under
al-Shabaab’s
control, United Nations Workers recorded reports of nine executions
by firing squad or stoning, mostly for alleged spying or murder, five
cases of amputation, mostly of suspected thieves, and the flogging or
whipping of some twenty-eight individuals. In addition, seven cases
of beheading were reported, including those of five workers allegedly
killed in April 2010 because they were involved in reconstruction
work at the Parliament, and two people were allegedly shot dead in
June 2010 when they fled from a house in Mogadishu raided by Hizbul
Islam because they were watching a World Cup match.
Displacement
also continued to be a problem. According to a UNHCR report, during
the first seven months of 2010 50,065 Somalis sought refuge in
neighbouring countries and over 200,000 were internally displaced. As
of the end of July 2010, there were 600,484 Somali refugees, mainly
hosted in Kenya, Yemen, Ethiopia, Eritrea, Djibouti, Tanzania and
Uganda. In addition, 1.4 million Somalis were internally displaced.
Assessments conducted revealed that there was a high prevalence of
sexual violence in IDP camps, victims were generally of minority clan
origin, bereft of clan protection and often forced to engage in risky
coping mechanisms.
Recruitment
of children to be put on the front line remained an issue of major
concern. Although recent media attention highlighted the presence of
children within the ranks of forces linked to the Government, the
majority of reports of new instances of child recruitment attributed
responsibility to anti-Government elements.
The report further noted that a public health crisis
persisted in southern and central Somalia. While good rains between
April and June 2010 had improved the food security situation,
two million people (27 percent of the total population of
Somalia) continued to face a humanitarian crisis. Moreover, the
number of acutely malnourished children was estimated to be 230,000,
of which 35,000 were severely malnourished, and the majority of these
were in southern and central Somalia. The forced movement of people
on account of the conflict also limited access to clean water and
basic health services.
3. United Nations High Commissioner for Refugees
(UNHCR): Eligibility Guidelines for Assessing the International
Protection Needs of Asylum-Seekers from Somalia (“the
Eligibility Guidelines”), 5 May 2010
UNHCR’s
Eligibility Guidelines for Assessing the International Protection
Needs of Asylum-Seekers from Somalia (“the Eligibility
Guidelines”) were published on 5 May 2010. The Eligibility
Guidelines noted that over the last three years there had been a
consistent failure by all parties to respect basic principles of
international humanitarian law, resulting in civilians regularly
being caught in the cross-fire. Indiscriminate bombardment and
military offensives were carried out in civilian areas with little or
no regard for the rules of war and road-side and vehicle-borne bombs,
grenade attacks in civilian areas, and deliberate attacks on civilian
targets were all too frequent. Hospital records indicated that there
were over 900 civilian casualties in Mogadishu in March and April
2010. Other estimates suggested that between 20 and 50 civilians were
killed in Mogadishu each week.
While
the armed conflict was a major cause of displacement, the report
noted that increasing numbers of Somalis were fleeing due to fear of
persecution linked to the recent political and human rights
situation. Others feared persecution due to perceived or actual
contravention of traditional Somali social norms and practices. These
groups included members of minority clans, women of specific
profiles, victims of blood feuds, Christian converts, and lesbian,
gay, bisexual and transgender individuals.
Consequently,
UNHCR concluded that the widespread disregard of their obligations
under international law by all of the parties to the conflict and the
reported scale of human rights violations made it clear that any
person returned to southern and central Somalia would, solely on
account of his or her presence there, face a real risk of serious
harm. Moreover, UNHCR considered that there was no internal flight
alternative available inside southern and central Somalia.
UNHCR
identified three potential agents of persecution. First, there were
Islamic militant groups such as al-Shabaab and Hizbul Islam. Both
groups had been accused of, and both had admitted to, using the
civilian population as human shields during military operations. Both
groups also had conducted a systematic campaign of intimidation and
assassination of civilians working for, associated with, or perceived
to be collaborating with the Transitional Federal Government, AMISOM
or the Ethiopian forces. They had also recruited young people and
children into their ranks, often with threats of force and violence.
Finally, they had set up Islamist administrations in areas under
their control and issued decrees to restrict social behaviour. The
enforcement of these decrees was often extreme and abusive and
violations were punished severely by Sharia courts.
Secondly,
UNHCR indicated that business persons and civil society figures were
particularly at risk as a result of the increased criminality in
Mogadishu.
Finally,
UNHCR identified the Transitional Federal Government and AMISOM as
potential agents of persecution. It noted that both groups were
accused of indiscriminately shelling civilian areas of Mogadishu in
reprisal to mortar attacks launched by opposition forces. In
addition, both groups had also been accused of firing at civilians.
The
report further noted that effective State protection was unavailable
in southern and central Somalia given the situation of armed conflict
and the inability of the government authorities to extend control
over any territory outside a few districts in Mogadishu. Moreover,
since 2007 clan protection had been undermined in Mogadishu and
increasingly in other regions of southern and central Somalia by the
ongoing conflict and by the diminution of the traditional clan
systems of justice due to the favoured strict interpretations of
Sharia law being implemented by
al-Shabaab and Hizbul Islam in
areas under their control.
E. Non-Governmental Organisations’ Reports
1. Amnesty International: No End in Sight – The
Ongoing Suffering of Somalia’s Civilians (25 March 2010)
Amnesty
International noted that civilians in Mogadishu and other cities such
as Dhusamareb in central Somalia and Beletweyne in the Hiran region
continued to be killed and seriously injured due to the fighting
between the armed opposition groups and pro-TGF forces. It noted
that:
“no party to the conflict appears to take the
necessary precautions to avoid loss of civilian life and injury,
despite their obligations to do so under international humanitarian
law. Civilians are often caught up in shelling and cross-fire by all
parties to the conflict, resulting in death and injury to thousands.
The fighting has provoked massive displacement within and outside
cities in south and central Somalia and
disruption of access to humanitarian aid, which are already
curtailed by insecurity and the targeting of aid workers. Civilians
living in areas controlled by armed opposition groups are also
increasingly subject to abduction, torture and unlawful killings.”
With
regard to the security situation in Mogadishu, they noted that:
“There are near weekly incidents of fighting and
shelling between armed opposition groups on one side and Transitional
Federal Government forces and AMISOM troops on the other side, and
near weekly reports of civilian deaths and injuries as a result.
Armed opposition groups continue to launch attacks from areas
inhabited or frequented by civilians in Mogadishu, endangering the
lives of civilians. They fire mortars and heavy artillery in the
direction of Transitional Federal Government and AMISOM bases, near
which civilians live. Transitional Federal Government and AMISOM
forces are repeatedly accused of responding by firing mortars and
using other artillery weapons in the direction of the attackers. All
sides to the conflict use mortars and other heavy artillery, weapons
which are inherently indiscriminate when used in densely populated
urban areas. Some sources have even alleged to Amnesty International
that AMISOM is firing BM or “Katyusha” rockets when
responding to attacks by armed opposition groups. These attacks and
counter-attacks invariably result in civilian deaths and injuries.”
The
report indicated that the delivery of emergency humanitarian aid to
Somalia was shrinking, as aid workers were coming under attack and
armed groups were imposing restrictions on the movement of
international agencies working in areas under their control. In
particular, it noted that:
“On 11 October 2009, Hizbul Islam in the Banadir
region asked all humanitarian organisations operating in areas under
their control to register within 15 days and pay a registration fee
by 25 October, whilst al-Shabab in the Juba region renewed their ban
against any agency wishing to operate in the region, stating “We
want our people to work for their life rather than depending on food
aid.”
In November, al-Shabaab in Bay and Bakool regions issued
a list of 11 conditions which humanitarian organisations were
required to adhere to in order to continue their work in the regions.
These conditions reportedly included replacing all female staff
members with men within three months, an agreement not to encourage
secularism or democracy in their work and a payment of $20,000 US
dollars every six months to the al-Shabaab administration. This was
followed on 25 November by an al-Shabaab statement ordering the World
Food Programme (WFP) to immediately cease the import of relief food
to the country, accusing the organisation of acting as a barrier to
self-sufficiency. All local businesspeople were ordered to terminate
their contracts with the WFP and the organisation was ordered to
empty their warehouses and
food-stocks by 1 January 2010.”
On
4 January 2010 the World Food Programme suspended its work in
southern Somalia due to insecurity for its staff and the demands
placed on them by parties to the conflict. Ninty-five percent of the
areas from which the organisation had withdrawn were under the
control of al-Shabaab, and al-Shabaab subsequently indicated that it
would never permit the organisation to return. However, Amnesty
International noted that over half of Somalia’s population was
dependent on food aid and many of those people lived in the areas
that the WFP had withdrawn from.
The
report also noted that the WFP had experienced difficulties in
delivering food to the IDP settlements in Afgooye, where some 360,000
persons displaced by the conflict were thought to live. On 28
February 2010 armed men stopped trucks transporting food aid from
Mogadishu to Afgooye and the WFP have since stated that the last time
they organised a general food distribution in Afgooye was in November
2009.
2. Amnesty International Briefing Paper, 18 October
2010
The
report indicated that civilians in Mogadishu continued to bear the
brunt of the fighting and were often caught up in shelling and
cross-fire by all parties to the conflict. There were nearly weekly
incidents of fighting and shelling between armed opposition groups on
one side and Transitional Federal Government forces and AMISOM troops
on the other, and near weekly civilian deaths and injuries as a
result.
Medical
records of the Daynile hospital on the outskirts of Mogadishu showed
that for the first seven months of 2010 48 percent of its patients
were suffering war-related injuries and 38 percent of those patients
were women and children. Between June and July 2010, hundreds of
civilians were killed or injured in Mogadishu. Some field reports
claimed that there were as many as fifty deaths in one day, while
UNHCR estimated that during the last week of August and the first
week of September 2010, 230 civilians were killed and 400 were
injured in fighting.
Likewise,
Médecins sans Frontières
stated that between 23 August and 24 September 2010 its
medical team in Daynile hospital treated 542 war-wounded people
and performed over 200 surgeries. Following intense fighting on 23
September 2010 MSF treated 161 war-wounded patients in one day.
148. The
African Union recently signalled its intention to increase the number
of AMISOM troops to 8,000 and Amnesty International believed that
when this happened it was likely to result in more attacks against
the force by armed Islamist groups and more retaliatory shelling by
AMISOM.
149. The
report noted that the fighting had also caused the destruction of
homes, the separation of families during chaotic flight, and massive
displacement. UNHCR estimated that 42,400 people had been displaced
from within and around Mogadishu since 23 August 2010, some 25,400
having fled Mogadishu and about 17,100 others having moved to
different parts of the city.
150. Al-Shabaab
had also been seizing cities elsewhere in southern and central
Somalia. In particular, there had been clashes in and around Kismayo,
Dhusamareb, Beletweyne and Dobley. As a result, 29,000 civilians had
been displaced from Dhusamareb and 25,000 had been displaced from
Beletweyne. In addition to the fighting, al-Shabaab had also severely
restricted humanitarian access in most of southern and central
Somalia, putting civilians at risk. According to the
report, humanitarian access in southern Somalia was at its lowest
since the end of 2006.
In
addition to indiscriminate attacks and the situation of generalised
violence, certain categories of people were particularly at risk of
targeted killing. These categories included people linked with the
Transitional Federal Government, civil society activists, aid workers
and journalists. Children and young men were also at high risk of
being forcibly recruited to fight for the armed Islamist groups.
3. Amnesty International – From Life Without
Peace to Peace Without Life
This
report, which was published on 8 December 2010, focussed on the
treatment of Somali refugees and asylum-seekers in Kenya, which
hosted the largest number of Somali refugees in the region. As of
September 2010, there were 338,151 registered refugees in the region,
but it was estimated that the actual number was much higher.
In
2007 the Kenyan authorities closed the country’s border with
Somalia and, according to estimates of Kenyan NGOs, thousands of
Somali refugees were subsequently returned to Somalia by the Kenyan
security forces. Some were expelled at the border while others were
denied entry altogether. Many of these refugees were women and
children who, according to UNHCRs eligibility guidelines, should have
been granted international protection.
Amnesty
International also received numerous reports of the Kenyan police at
the closed border threatening asylum-seekers with forced removal to
Somalia in order to extort bribes or arresting or detaining
asylum-seekers until they paid a bribe. In addition, Somali
asylum-seekers were often arbitrarily arrested, detained and charged
with “illegal entry”.
Prior
to the closure of the border, new refugees were registered and
medically screened at an UNHCR-administered transit centre 15km from
the border before being transported to refugee camps. When the border
closed, this transit centre also closed with the consequence that
refugees who made it to Kenya had to travel a further 80km to the
refugee camps before they could be registered. This journey was often
a dangerous one, during which Kenyan police were able to commit
abuses against them with impunity.
Approximately
280,000 registered Somali refugees were confined to three refugee
camps in Dadaab in north eastern Kenya, which were originally
intended to accommodate 90,000 refugees. As a result of the severe
overcrowding, access to shelter, water, sanitation and other
essential services was impeded. As no plots of land were available,
new refugees could not build shelters and instead had to stay with
relatives or clan members. In addition, the water infrastructure was
only designed for one third of the number of people currently living
in the camps and, as a result, many refugees complained that the
allocation of water was insufficient. Those living at the edges of
the camps often had to walk long distances to collect water.
Refugees
also complained of insecurity in the camps, which they attributed
either to tensions between different clans or to the alleged presence
of members of or sympathisers with al-Shabaab. Incidences of theft
and sexual abuse were on the increase. Aid and protection agencies
told Amnesty International that there were not enough police officers
present in the camps adequately to address security incidents. In any
case, refugees often distrusted the Kenyan police as many had been
the victim of abuses by the security forces while on their way to the
camps.
In
October 2009 reports emerged that the Kenyan security forces were
recruiting Somali refugees for military training in order to fight
for the Transitional Federal Government in Somalia. UNHCR
subsequently launched an awareness campaign in the camps, warning
refugees that they would lose their refugee status if they joined
armed groups.
Somali
refugees in the Dadaab camps were generally not permitted to leave
the camps, unless in exceptional circumstances, and they had almost
no livelihood opportunities. They did, however, receive free
humanitarian assistance in the camps.
4. Human Rights Watch: Harsh War,
Harsh Peace
In
this report, published in April 2010, Human Rights Watch documented
abuses by al-Shabaab, the Transitional Federal Government and AMISOM
in Somalia. The report indicated that over the past year, hostilities
had raged in strategically important areas, like Mogadishu, while
much of the rest of Somalia enjoyed relative peace. However, the
report concluded that both the inhabitants of the shattered capital
and those living in more peaceful areas had endured devastating
patterns of abuse.
In
Mogadishu and in other conflict areas in southern and central Somalia
the fighting had exacted a heavy toll on civilians. In particular,
the report noted that all parties to the conflict had conducted
numerous mortar attacks against enemy forces in densely populated
areas of Mogadishu without regard for the civilian population,
causing a high loss of civilian life and property. While mortars
could be highly accurate weapons if guided to their targets by
spotters or guidance systems, none of the warring parties in
Mogadishu had employed such methods. Opposition armed groups had
indiscriminately fired mortar rounds in the general direction of
Transitional Federal Government or AMISOM installations in southern
Mogadishu. Transitional Federal Government and AMISOM forces
sometimes responded in kind, directing mortar rounds towards the
general area they had taken fire from or simply bombarding areas such
as Bakara Market that were opposition strongholds. Such attacks,
while of limited military value, caused considerable loss of civilian
life and property damage.
The
report noted that there had been sporadic fighting between other
groups outside Mogadishu which had exacted a heavy toll on civilians.
For example, clashes between Hizbul Islam and Ahlu Sunna Waljamaca
around the central towns of Dhusamareb and Beletweyne displaced more
that 25,000 people at the beginning of 2010.
The
report further indicated that humanitarian workers had been targeted.
According to the Office of the UN Emergency Relief Co-ordinator, 47
aid workers were killed in Somalia in 2008 and 2009. Humanitarian
workers also faced a variety of other threats, from the broader trend
of indiscriminate violence in conflict areas to al-Shabaab
accusations of spying on behalf of western powers.
For example, in early 2009 the WFP suspended
delivery of food aid to a vast swath of southern Somalia controlled
largely by al-Shabaab, citing the group’s escalating attacks
and harassment against its staff and “unacceptable”
demands for payment.
Forced
and unlawful recruitment was also a problem. The report noted that
opposition forces, especially but not exclusively al-Shabaab, were
expanding their ranks by threatening those who resisted with death
and at times carrying out their threats. In addition, both insurgent
groups and government forces were recruiting and using child soldiers
to varying degrees and had entered refugee camps in Kenya to enlist
additional fighters. The report noted that al-Shabaab had recruited
children in a more deliberate and systematic manner than the
Transitional Federal Government or other armed groups. Thus the
recruitment of children – and the fear of it – was
widespread in many areas controlled by al-Shabaab.
The
report stated that in areas controlled by al-Shabaab (much of the
south of Somalia), the population was subjected to targeted killings
and assaults, a repressive form of social control and brutal
punishments under its draconian interpretation of Sharia law, which
went well beyond its traditional interpretation in Somalia. While in
many areas al-Shabaab’s rule had brought relative peace and
order, security came at a steep price. In many areas, al-Shabaab
dictated even minute details of daily life, from clothing styles to
prayer observance to cell phone ring tones. The report indicated
that:
“Al-Shabaab exerts enormous control over personal
lives and devotes remarkable energy to policing and penalizing
conduct that it deems idle or immoral. Almost no detail is too minute
to escape the group’s scrutiny. In many areas, al-Shabaab
administrators have banned public gatherings, dancing at weddings,
musical ringtones on cell phones, western music, and movies. They
have outlawed qat chewing and cigarette smoking. They have barred men
from shaving their beards and moustaches, or wearing long hair or
long trousers. They have refused to allow people on the streets
during prayer times.
In many areas, al-Shabaab patrols break up public
gatherings, no matter how small, unless they are the organizers.
Frequently, al-Shabaab justifies the dispersals on the grounds that
participants are engaged in ‘idle’ or ‘useless’
activity, a concept that is arbitrarily applied and often includes
everything from playing soccer to talking among friends. ‘If
they find a group of people talking, they may just beat them and tell
them to go and do something useful’, said one man from the
border village of El Wak.
One young man from Kismayo said he watched an al-Shabaab
patrol throw a group of teenage boys in jail one evening for playing
Scrabble:
‘They said this was idle activity. They took them
away and jailed them overnight and shaved some of their heads with a
razor blade or a broken bottle. One of them was injured from the
shaving. They won’t even let people gather to listen to the
BBC, or to smoke tobacco.’”
Human
Rights Watch also interviewed a widower in an IDP camp in the Afgoye
corridor, who claimed that al-Shabaab gunmen had threatened to kill
him if he didn’t stop tucking in his shirt, which they
criticised as a western custom.
Human
Rights Watch noted that while all Somalis living under local
al-Shabaab administrations had to cope with onerous and repressive
edicts, women bore the brunt of the group’s repression and
abuse. In particular, some al-Shabaab leaders had ordered women to
wear a particularly thick and bulky type of abaya, an over-gown which
covered everything except the hands, face and feet. Al-Shabaab
fighters would patrol neighbourhoods and punish women in
lighter-weight abayas. In many cases women were beaten or whipped for
wearing the wrong clothing.
In
addition, al-Shabaab administrations ordered women to close their
shops as commercial activity permitted them to “mix with men”.
In a country with a vast number of war widows and female-headed
households, this edict left many families without crucial sources of
income. Moreover, the segregation of men and women applied to all
areas of daily life. Women were not permitted to go to the market
with men, even if they were relatives, and if travelling in a
vehicle, they had to sit in different seats. There were reports of
women being flogged at checkpoints if they were found to be sitting
beside a man.
Finally,
the report noted that in many areas, al-Shabaab leaders had embraced
amputations and executions as punishment and turned them into a
public spectacle. Since 2008 at least three people had been stoned to
death for allegedly committing adultery. There were some unconfirmed
reports that one of these people was a thirteen year old girl.
5. Human Rights Watch: World Report 2010
Human
Rights Watch Annual World Report summarised the situation in Somalia
as “one of the world’s worst human rights catastrophes”.
Mogadishu was wracked by indiscriminate warfare in which all parties
were implicated in war crimes or other serious human rights abuses,
while much of the rest of the country was under the control of local
administrations linked to armed opposition groups. In many of these
areas the population had suffered from the abusive application of
Sharia law and forced conscription of civilians, including children,
as militia fighters. In addition, a humanitarian crisis of enormous
proportions was unfolding, fuelled by years of drought and insecurity
that had often prevented the effective delivery of aid. Some 3.75
million people – roughly half of Somalia’s remaining
population – were in urgent need of humanitarian assistance.
More than a million people were displaced from their homes within
Somalia and tens of thousands had fled the country as refugees in
2009.
The
delivery of humanitarian assistance to Somalia had been severely
hampered by the prevailing insecurity and by threats specifically
targeting humanitarian agencies. Most of the humanitarian agencies
operating in Somalia had had to dramatically curtail their operations
or had been driven out of southern and central Somalia altogether. In
opposition-controlled areas where millions of Somalis were in
need of assistance, humanitarians had come under regular threat by
al-Shabaab and other groups which accused them of colluding with
international efforts to back the Transitional Federal Government.
6. Human Rights Watch – “Welcome to Kenya”:
Police Abuse of Somali Refugees
This
report, which was published in June 2010, details the continuing
abuses perpetrated by the Kenyan authorities against Somali refugees
and asylum-seekers. It noted that despite the closure of the border,
more than 140,000 refugees entered Kenya and registered at the Dadaab
camps between 1 January 2007 and 30 April 2010. However, the closure
of the border and UNHCR’s transit centre had created a lawless
no man’s land in Kenya’s border area near the refugee
camps. Consequently, asylum-seekers endeavouring to reach the camps
were often intercepted by Kenyan police who sought to extort money
from them and unlawfully arrest, detain, abuse and even deport those
who could not pay.
Human
Rights Watch spoke with dozens of Somali refugees whose vehicles had
been stopped by police patrolling the border to extort money from
them in exchange for free passage to the camps. In some cases, police
had raped women and physically assaulted men. In many other cases,
refugees were arrested and detained by the police before being
permitted to register in the camps. They were detained in overcrowded
cells with poor ventilation and no, or almost no, food and water.
Some were not permitted to use the toilet and had to use the cell
floor to urinate and defecate. Detained refugees were often released
upon the payment of a bribe. If they could not pay, they were
threatened with court proceedings in a last ditch attempt to extort
money from them.
Moreover,
Human Rights Watch documented eight separate incidents in which
Kenyan police returned asylum-seekers to Somalia. All of these
incidents, which involved 152 men, women and children, took place
between September 2009 and March 2010. According to this sample,
Human Rights Watch estimated that hundreds if not thousands of
Somalis were being returned to Somalia each month in breach of the
principle of non-refoulement.
Such
widespread abuses compelled many asylum-seekers to travel through
Kenya on smaller paths where criminals preyed on them, stealing their
belongings and raping women.
There
were further reports of serious abuses by Kenyan police officers
within the refugee camps. Seven refugees told Human Rights Watch of
ten separate incidents during which police had violently assaulted
them or during which they had observed police assaulting other
refugees. One woman complained that she had been raped by a police
officer in the camps.
In
addition, refugees reported that the police failed to respond to
allegations of sexual violence within the camps. In particular, a
lack of capacity and expertise impeded the prevention, investigation
and prosecution of acts of sexual violence. International policing
standards required 1 police officer per 400 people. Although Kenya’s
official average was 1 per 800 people, the official ration in the
camps was 1 per 5500 people. There were reports that the police would
not investigate crimes unless the victims could pay them, and in
other cases it was alleged that investigations were discontinued and
perpetrators were released upon the payment of a bribe. According to
UNHCR, in 2009 police in the camps prosecuted sixteen cases of sexual
and gender-based violence of which seven resulted in convictions, six
in acquittals, and three remained pending at the end of the year.
Human
Rights Watch also reported that since the early 1990s, Kenya had
adopted an informal encampment policy for most refugees, restricting
their movement to the limited confines of the refugee camps. Refugees
found outside the camps without “movement passes” were
arrested, fined and imprisoned for months at a time.
7. International Displacement Monitoring Centre –
Somalia: Political and security crises, access limits and donor cuts
increasing IDP vulnerability (10 December 2009)
The
International Displacement Monitoring Centre estimated that as of
November 2009 1.55 million people were internally displaced in south
and central Somalia. Many IDPs had fled from the conflict in
Mogadishu. Hundreds of mini-buses were ferrying people out of the
city but, as a result of high demand, the cost of transportation was
going up daily and many people were being forced to remain in the
city.
Some
IDPs had fled from conflict in other areas of southern and central
Somalia. The report noted that people in Beletweyne, Kismayo and
Afmadow had been displaced as a result of fighting in late 2009. In
addition, up to 90 percent of the population of Dhuusamarreeb and
Guriceel towns in the Galgaduud region of central Somalia fled their
homes after fighting began in December 2008. Many of these people had
already been displaced as a result of the fighting in Mogadishu.
Many
of the displaced from Mogadishu moved to the already overcrowded
settlements that lined the 30 kilometre road between Mogadishu and
Afgooye. UNHCR had estimated that in November 2009 there were 610,000
IDPs around Afgooye, 370,000 around Mogadishu, 150,000 in Galgadud,
70,000 in Galkayo (Puntland), 66,000 in Baydhaba and 51,000 in Hiran.
However, due to the security situation, it was extremely difficult to
verify these figures.
The
report further noted that half of the population in Somalia was
believed to be in need of humanitarian assistance but the continuing
insecurity was preventing the delivery of essential supplies. In May
2009 militia had attacked a UNICEF warehouse. In July 2009 camps in
Jowhar hosting 49,000 IDPs were cut off from assistance as the WFP
was unable to distribute food due to insecurity. In August 2009
UNICEF were forced to suspend the dispatch of hundreds of tons of
supplies for the prevention and treatment of acute malnutrition.
Targeting of humanitarian workers has also affected delivery of aid
to needy populations. From 2008 to November 2009 some 42 aid workers
had been killed, 33 had been abducted and 10 remained in
captivity.
In
July 2009 al-Shabaab announced a ban on a number of UN agencies in
areas of southern and central Somalia under its control, including
the United Nations Development Agency. Towards the end of November
2009 al-Shabaab demanded that WFP stop importing food into Somalia
from January 2010 and instead buy local produce, despite the fact
that the country could not meet the food needs of its population.
Despite the threats, WFP managed to provide food through local and
international partners where security permitted. In the first half of
2009, WFP provided food aid to 2.87 million Somalis. UNICEF and other
agencies continued to provide health care and water, sanitation and
health programmes in IDP settlements. However, the security situation
had impacted these programmes.
Aid
work had also been impacted by funding cuts. The USA had withheld
millions of dollars from UN agencies, possibly due to a fear that
donations may reach al-Shabaab, which was thought to have growing
ties with al-Qaeda. In November 2009 WFP reported that its food
supply to Somalia had been effectively broken as a result of the
USA’s policy as it had been the largest donor to the WFP.
In
September 2009 Oxfam reported that poor sanitation and the lack of
access to basic services were creating a public health emergency in
IDP camps. It described the Afgooye camps as “the world’s
densest concentration of displaced people” and described the
situation as “a human tragedy of ‘unthinkable
proportions’”. The camps were also vulnerable to
environmental problems. In October 2009 flash floods hit IDP camps in
Kismayo and Mogadishu and destroyed the makeshift shelters of
thousands of people. In Kismayo, rains left an estimated 36,000
people homeless and exposed them to mosquitoes and other
hygiene-related problems.
The
report noted that close to 80 percent of the Somali population had no
access to safe water and nearly 50 percent had no access to
sanitation. Many displaced women were forced to walk up to 10
kilometres each day to fetch water, increasing the risk of being
attacked or raped by militias. IDPs often had to pay to use the
latrines in the camps in addition to paying rent. As a result, many
camps were littered with garbage and faeces, increasing the incidence
of disease.
8. The World Food Programme (“WFP)”
On
5 January 2010 the WFP issued a statement reporting that:
“Rising threats and attacks on humanitarian
operations, as well as the imposition of a string of unacceptable
demands from armed groups, have made it virtually impossible for the
World Food Programme (WFP) to continue reaching up to one million
people in need in southern Somalia.
WFP’s humanitarian operations in southern Somalia
have been under escalating attacks from armed groups, leading to this
partial suspension of humanitarian food distributions in much of
southern Somalia.
WFP’s offices in Wajid, Buale, Garbahare, Afmadow,
Jilib and Beletweyne in southern Somalia are temporarily closed, and
food supplies and equipment have been moved, along with staff, to
safer areas in order to ensure that food assistance continues to
reach as many vulnerable people as possible.”
The
Food Security and Nutrition Analysis Unit (FSNAU) reported in its
Special Brief – Post-Deyr ‘09/10 Analysis issued on 12
February 2010 that Somalia has:
“... 42% of the population, or an estimated 3.2
million people, in need of emergency humanitarian assistance and/or
livelihood support until June 2010. The results indicate that
although there are some positive indicators in terms of the lifting
of the livestock export ban and improved crop and livestock
production in southern parts of the country, the food security and
nutrition situation in central regions remains in crisis, where 70%
of the population require assistance. The situation is exacerbated by
escalating conflict and displacements, creating a double burden for
drought affected populations in central regions, having to support
those recently displaced yet with reduced access to assistance from
aid agencies due to the insecurity.
Emergency levels of acute malnutrition continue to be
reported, with 1 in 6 children in Somalia acutely malnourished and in
need of specialist care. Of these children, 1 in 22 is severely
malnourished and at a 9 times increased risk of death compared to
well-nourished children. However, in south and central Somalia the
rates are higher, with 1 in 5 children acutely malnourished of which
1 in 20 is severely malnourished. These national rates of acute
malnutrition continue to be amongst the highest in the world.
Currently, these rates translate into estimated 240,000 children
under 5 years of age in Somalia being acutely malnourished, of which
63,000 are severely malnourished. More than two thirds of these
children are located in south and central Somalia, the areas most
affected by the current conflict. The people currently in crisis
include 1.25 million rural people affected by drought, 580,000 urban
people who struggle with very high food and non-food prices, and 1.39
million internally displaced people (IDPs) who are fleeing from the
conflict.”
9. Médicins Sans Frontières (MSF)
In
a report of 21 December 2009, entitled “Top ten under-reported
humanitarian stories of 2009, MSF described the situation in Somalia
as follows:
“In 2009, the Somali population continued to fall
victim to indiscriminate violence, while severe drought plagued parts
of the country. Millions of people urgently require health care, yet
the enormous gap between the needs of Somalis and the humanitarian
response on the ground continues to widen. Ongoing abductions and
killings of international and Somali aid workers is thwarting the
efforts of humanitarian organizations to respond, and the public
health-care system remains in near total collapse.
...The impact of such high levels of violence and
insecurity stretches far beyond MSF’s surgical units,
contributing to a general lack of access to basic lifesaving medical
care countrywide. MSF’s ability to provide assistance was
further diminished when in April two MSF staff members were abducted
in Huddur in Bakool region leading to the closure of its largest
health centre in south and central Somalia and four other health
posts. In June an MSF employee died in an explosion in Belet Weyne,
Hiraan region, which killed 30 other people. In July, the heightened
insecurity forced MSF, for the first time in 17 years, to close
activities in its pediatric hospital and three other health clinics
in northern Mogadishu as staff were forced to flee for their own
safety.
Another major challenge is the lack of qualified medical
staff in Somalia, with so many health workers among those who have
fled the violence and no medical universities open. In December 2008,
there was a ray of hope with the graduation of 20 doctors from
Benadir University in Mogadishu—the first graduating class of
new physicians in two decades. This hope was short-lived with the
bombing of the next graduation ceremony on December 3, 2009, killing
23 people, mostly graduates, and wounding more than 50 others.
The lack of free medical care available throughout the
country exacerbates the health issues people face as a result of
chronic poverty and this year’s severe drought. Although little
reliable data is available at the national level, health-care
indicators in Somalia are among the worst in terms of immunization,
maternal mortality, malnutrition and access to basic health care
services. According to the World Health Organization, women have a
one in ten lifetime risk of dying during pregnancy or childbirth. One
in five children under the age of five is acutely malnourished.”
F. Recent news reports
On
16 September 2010 IRIN reported that property owners in Somalia’s
Afgooye corridor were selling the land on which thousands of IDPs had
been settled for years, displacing them anew. The new landlords were
building structures for rent, but few could afford to pay the prices
asked. Some well-placed sources had heard reports that the people
buying the land had links with piracy.
On
1 October 2010 the UN News Centre reported that according to UNHCR
estimates, 410,000 IDPs from Mogadishu had sought refuge in the
Afgooye corridor, which represented a considerable increase from
366,000 in September 2009. This increase was thought to be a
reflection of the deteriorating security in the city since 2007. In
addition to the 410,000 IDPs living in Afgooye, there were another
55,000 displaced people in Dayniile, north of Mogadishu, 15,200 in
the Bal’cad corridor in the northern periphery of city, and
7,260 others in Kax Shiiqaal in the western outskirts. Mogadishu
itself had an estimated 372,000 IDPs.
The
report noted that there had been a rapid urbanisation of the Afgooye
corridor, which was clearly apparent in the satellite imagery.
Structures in Afgooye were becoming more permanent as hopes faded for
a safe return to the capital any time soon. According to UNHCR,
living conditions in the Afgooye corridor were extremely difficult,
with people struggling to feed themselves and lacking other basic
necessities, while as the precarious security situation prevented
humanitarian agencies from accessing those in need. Some assistance
was getting there through local partners, but the amounts were
minuscule compared to the needs.
The
Secretary-General’s Special Representative for Somalia,
Augustine Mahiga, said that without peace in southern and central
Somalia, it would be difficult to envisage profound and lasting
changes in the precarious human rights situation there, especially
with regard to the right to life, and even basic human rights such as
the right to food, shelter, education and health.
On
3 February 2011 the Guardian reported that Somalia was once again
facing a malnutrition crisis. An estimated 2.4 million people –
about a third of Somalia’s population – required
humanitarian aid
after the failure of recent rains and drought had overtaken
insecurity as the leading cause of displacement. In fact, it was
reported that as a consequence of the drought, the exodus from
conflict-racked Mogadishu in recent years had been reversed, with
thousands of people now leaving the countryside for the capital in
search of food and water.
195. On
17 February 2011 UN News Centre reported that severe drought in
Somalia was once again exacerbating the humanitarian crisis with more
people becoming internally displaced and others moving into refugee
camps across the border in Kenya. Malnutrition rates among children,
already above emergency levels in Somalia, had risen and an estimated
2.4 million people – 32 per cent of the country’s 7.2
million people – were in need of relief aid.
THE LAW
Given
their similar factual and legal background, the Court decides
that the two applications should be joined pursuant to Rule 42 §
1 of the Rules of Court.
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
The
applicants complained that their removal to Mogadishu would expose
them to a real risk of being subjected to treatment in breach of
Article 3 of the Convention and/or a violation of Article 2 of the
Convention. Articles 2 and 3 provide, so far as relevant, as follows:
“Article 2
1. Everyone’s right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
...
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
They
further complained that their removal would constitute a
disproportionate interference with their rights under Article 8 of
the Convention, which provides:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government contested those arguments.
The
Court considers that it is more appropriate to deal with the
complaints under Articles 2 and 8 of the Convention in the context of
its examination of the related complaint under Article 3 and will
proceed on this basis (Said v. the Netherlands, no. 2345/02, §
37, ECHR 2005 VI; D. v. the United Kingdom, 2
May 1997, BAILII: [1997] ECHR 25, § 59, Reports of Judgments and Decisions
1997 III; and NA. v. the United Kingdom, no. 25904/07, §
95, 17 July 2008, BAILII: [2008] ECHR 616).
A. Admissibility
1. The parties’ submissions
The
Government submitted that the applicants had failed to exhaust
domestic remedies as they did not make fresh claims for asylum under
paragraph 353 of the Immigration Rules HC 395 (as amended) in light
of the developing situation in Mogadishu. They further submitted that
the second applicant also failed to exhaust domestic remedies as he
had not applied for an order for reconsideration of the Asylum and
Immigration Tribunal’s decision pursuant to section 103 of the
Nationality, Immigration and Asylum Act 2002.
Alternatively,
the Government submitted that the applicants’ complaints under
Article 3 of the Convention were manifestly ill-founded.
The
applicants submitted that they had exhausted all domestic remedies.
First, they submitted that paragraph 353 did not provide a remedy
which they were required to exhaust, as the making of a fresh claim
was a discretionary remedy and not an automatic right. Secondly, even
if paragraph 353 did provide a remedy which they were required to
exhaust, the applicants submitted that they were unable to make a
fresh claim as the content of their claims had already been
considered and they were not in possession of material which could be
considered to be “significantly different” to that
previously considered. Thirdly, as the applicants had not been found
to be credible, in practice any fresh claim would have had virtually
no prospect of success.
The
second applicant further submitted that he did not seek an order for
reconsideration of the Tribunal’s decision because he was
advised both by his lawyer, a senior lawyer from the Refugee Legal
Centre, and Counsel, a highly experienced asylum practitioner, that
there were insufficient grounds on which to challenge the decision.
The Court had always held that experienced counsel’s opinion to
the effect that a remedy had no prospect of success was enough to
indicate that an appeal would not be successful (O’Reilly
and Others v. Ireland, no. 54725/00, 29 July 2004 and H.
v. the United Kingdom, 8 July 1987, Series A no. 120).
2. The Court’s assessment
The Court recalls that the rule of exhaustion of
domestic remedies in Article 35 § 1 of the Convention requires
applicants first to use the remedies provided by the national legal
system, thus dispensing States from answering before the Court for
their acts before they have had an opportunity to put matters right
through their own legal system. The burden of proof is on the
Government claiming non-exhaustion to satisfy the Court that an
effective remedy was available in theory and in practice at the
relevant time, namely, that the remedy was accessible, capable of
providing redress in respect of the applicant’s complaints and
offered reasonable prospects of success (see T. v. the United
Kingdom [GC], no. 24724/94, 16 December 1999, § 55).
Article 35 must also be applied to reflect the practical realities of
the applicant’s position in order to ensure the effective
protection of the rights and freedoms guaranteed by the Convention
(Hilal v. the United Kingdom (dec.), no. 45276/99, 8
February 2000).
The
Court has consistently held that mere doubts as to the prospects of
success of national remedies do not absolve an applicant from the
obligation to exhaust those remedies (see, inter alia,
Pellegrini v. Italy (dec.), no. 77363/01, 26 May 2005, BAILII: [2005] ECHR 948,;
MPP Golub v. Ukraine (dec.), no. 6778/05, 18 October
2005, BAILII: [2005] ECHR 949,; and Milosevic v. the Netherlands (dec.), no. 77631/01,
19 March 2002, BAILII: [1999] ECHR 194,). However, it has also on occasion found that where an
applicant is advised by counsel that an appeal offers no prospects of
success, that appeal does not constitute an effective remedy
(see Selvanayagam v. the United
Kingdom (dec.), no. 57981/00, 12 December 2002, BAILII: [2002] ECHR 857,; see also H.
v. the United Kingdom, cited above; and McFeeley and others v.
the United Kingdom, no. 8317/78, Commission decision of 15 May
1980, Decisions and Reports (DR) 20, p. 44). Equally, an applicant
cannot be regarded as having failed to exhaust domestic remedies if
he or she can show, by providing relevant domestic case-law or any
other suitable evidence, that an available remedy which he or she has
not used was bound to fail (Kleyn and Others v. the Netherlands
[GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99,
§ 156, ECHR 2003 VI, BAILII: [2003] ECHR 226 ; Salah Sheekh v. the Netherlands,
no. 1948/04, §§ 121 et seq., ECHR 2007 ...
(extracts), BAILII: [2007] ECHR 36).
The
Court accepts that where there has been a significant change in
either the applicant’s circumstances or the conditions in his
country of origin, making further submissions under paragraph 353 of
the Immigration Rules could constitute an effective domestic remedy
which an applicant would be required to exhaust. However, in the
present case the Court recalls that after the applicants’
complaints were considered by the Asylum and Immigration Tribunal,
the Tribunal considered a number of other complaints by applicants
challenging their removal to Mogadishu. Prior to the Country Guidance
decision of AM & AM (Somalia), which was promulgated
towards the end of 2008, the Tribunal had consistently held that the
situation in Mogadishu, and in Somalia generally, was not
sufficiently grave to place anyone being returned at risk of serious
harm and that members of majority clans could still look to their
clan for protection. As the first applicant’s claim to be a
member of a minority clan had not been believed and the second
applicant had accepted that he was a member of a majority clan, the
Court does not accept that there was a reasonable prospect that the
Secretary of State for the Home Department would have accepted any
further submissions by the applicants as amounting to fresh claims
for asylum prior to the decision in AM & AM (armed
conflict: risk categories) Somalia CG [2008] UKAIT 00091.
In AM & AM (Somalia) the Asylum and Immigration Tribunal
found that the situation in Mogadishu had changed significantly and
that it was no longer a safe place to live for the majority of its
citizens. Nevertheless, it also found that it would be possible for
persons from Mogadishu to relocate safely within Somalia. In view of
this finding, the Court considers it likely that even if the
applicants had made further representations following the decision in
AM & AM (Somalia), and even if the Secretary of State had
considered those representations to amount to a fresh claim for
asylum, such a claim would not have been successful as the applicants
would have been considered to have had an internal flight alternative
within Somalia.
Consequently,
in the circumstances of the present case, the Court does not consider
that paragraph 353 of the Immigration Rules HC 396 (as amended)
provided the applicants with an effective domestic remedy which
offered reasonable prospects of success. It therefore rejects the
Government’s submission that the applicants failed to exhaust
domestic remedies on account of the fact that they did not make
further representations to the Secretary of State for the Home
Department when the situation in Somalia worsened.
With
regard to the Government’s submission that the second applicant
failed to exhaust domestic remedies as he did not apply for an order
for reconsideration, the Court recalls that he was
advised by a senior lawyer from the Refugee Legal Centre and by
experienced counsel that such an application would have had no
realistic prospect of success. The Court notes that both the lawyer
and counsel advising the second applicant were senior and experienced
specialists in the immigration and asylum fields. In these
circumstances, the Court has no hesitation in concluding that it was
“settled legal opinion” that the applicant would not have
succeeded in an application for reconsideration.
210. The
Court therefore also rejects the Government’s submission that
the second applicant failed to exhaust an effective domestic remedy
by failing to apply for reconsideration of the Tribunal’s
decision.
211. Finally,
the Court recalls that the Government have also submitted that the
applicants’ complaints are manifestly ill-founded. The Court
considers that this submission raises questions which are closely
linked to the merits of the case. It will therefore deal with
that submission in its examination of the merits below. It further
notes that the application is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. General principles applicable in expulsion cases
It
is settled case-law that Contracting States have the right as a
matter of international law and subject to their treaty obligations,
including the Convention, to control the entry, residence and
expulsion of aliens (Üner v. the Netherlands [GC],
no. 46410/99, § 54, ECHR 2006 ....; Abdulaziz, Cabales
and Balkandali v. the United Kingdom, judgment of 28 May
1985, Series A no. 94, p. 34, § 67, Boujlifa v. France,
judgment of 21 October 1997, Reports 1997 VI, p. 2264, §
42). The right to political asylum is also not contained in either
the Convention or its Protocols (Salah Sheekh, cited
above, BAILII: [2007] ECHR 36, § 135, with further authorities). However, expulsion by a
Contracting State may give rise to an issue under Article 3, and
hence engage the responsibility of that State under the Convention,
where substantial grounds have been shown for believing that the
person concerned, if deported, faces a real risk of being subjected
to treatment contrary to Article 3. In such a case, Article 3 implies
an obligation not to deport the person in question to that country
(Saadi v. Italy [GC], no. 37201/06, § 125, 28
February 2008, BAILII: [2008] ECHR 179). As the prohibition of torture and of inhuman or
degrading treatment or punishment is absolute, irrespective of the
victims conduct, the nature of the offence allegedly committed by the
applicants is irrelevant for the purposes of Article 3 (see Chahal
v. the United Kingdom, judgment of 15 November 1996, BAILII: [1996] ECHR 54, Reports
1996-V, § 79; and Saadi v. Italy, cited above, §
127). Consequently, the conduct of the applicants, however
undesirable or dangerous, cannot be taken into account (Saadi v.
Italy [GC], § 138).
The
assessment whether there are substantial grounds for believing that
the applicant faces such a real risk inevitably requires that the
Court assess the conditions in the receiving country against the
standards of Article 3 of the Convention (Mamatkulov and Askarov
v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR
2005 I, BAILII: [2005] ECHR 64). These standards imply that the ill-treatment the
applicant alleges he will face if returned must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this is relative, depending on all the circumstances of
the case (Hilal v. the United Kingdom, no. 45276/99, §
60, ECHR 2001 II, BAILII: [2001] ECHR 214). Owing to the absolute character of the right
guaranteed, Article 3 of the Convention may also apply where the
danger emanates from persons or groups of persons who are not public
officials. However, it must be shown that the risk is real and that
the authorities of the receiving State are not able to obviate the
risk by providing appropriate protection (H.L.R. v. France,
judgment of 29 April 1997, Reports 1997 III, § 40, BAILII: [1997] ECHR 23).
The
assessment of the existence of a real risk must necessarily be a
rigorous one (see Chahal v. the United Kingdom, judgment of 15
November 1996, BAILII: [1996] ECHR 54, Reports 1996-V, § 96; and Saadi v.
Italy, cited above, § 128). It is in principle for the
applicant to adduce evidence capable of proving that there are
substantial grounds for believing that, if the measure complained of
were to be implemented, he would be exposed to a real risk of being
subjected to treatment contrary to Article 3 (see N. v. Finland,
no. 38885/02, § 167, 26 July 2005, BAILII: [2005] ECHR 542). Where such
evidence is adduced, it is for the Government to dispel any doubts
about it.
If
the applicant has not yet been extradited or deported when the Court
examines the case, the relevant time will be that of the proceedings
before the Court (see Saadi v. Italy, cited above, §
133). A full and ex nunc assessment is called for as the
situation in a country of destination may change in the course of
time. Even though the historical position is of interest in so far as
it may shed light on the current situation and its likely evolution,
it is the present conditions which are decisive and it is therefore
necessary to take into account information that has come to light
after the final decision taken by the domestic authorities (see Salah
Sheekh, cited above, § 136, BAILII: [2007] ECHR 36).
The
foregoing principles, and in particular the need to examine all the
facts of the case, require that this assessment must focus on the
foreseeable consequences of the removal of the applicant to the
country of destination. This in turn must be considered in the light
of the general situation there as well as the applicant’s
personal circumstances (Vilvarajah and Others v. the United
Kingdom, judgment of 30 October 1991, Series A no. 215,
§ 108). In this connection, and where it is relevant to do so,
the Court will have regard to whether there is a general situation of
violence existing in the country of destination.
In
Vilvarajah v. the United Kingdom the Court appeared to
suggest that a mere situation of general instability would only give
rise to a breach of Article 3 of the Convention if there was evidence
to demonstrate that the applicant’s personal situation was
worse than that of the generality of other members of his group
(Vilvarajah v. the United Kingdom, cited above, § 111).
However, in N.A. v. the United Kingdom the Court
expressly considered its earlier decision in Vilvarajah v.
the United Kingdom and concluded that it should not be
interpreted so as to require an applicant to show the existence of
special distinguishing features if he could otherwise show that the
general situation of violence in the country of destination was of a
sufficient level of intensity to create a real risk that any removal
to that country would violate Article 3 of the Convention (N.A. v.
the United Kingdom, cited above, §§ 115 – 116).
To insist in such cases that the applicant show the existence of such
special distinguishing features would render the protection offered
by Article 3 illusory (N.A. v. the United Kingdom, cited
above, § 116). Moreover, such a finding would call into question
the absolute nature of Article 3, which prohibits in absolute terms
torture and inhuman or degrading treatment or punishment.
Therefore,
following NA v. the United Kingdom, the sole question for the
Court to consider in an expulsion case is whether, in all the
circumstances of the case before it, substantial grounds have been
shown for believing that the person concerned, if returned, would
face a real risk of being subjected to treatment contrary to Article
3 of the Convention. If the existence of such a risk is established,
the applicant’s removal would necessarily breach Article 3,
regardless of whether the risk emanates from a general situation of
violence, a personal characteristic of the applicant, or a
combination of the two. However, it is clear that not every situation
of general violence will give rise to such a risk. On the contrary,
the Court has made it clear that a general situation of violence
would only be of sufficient intensity to create such a risk “in
the most extreme cases” where there was a real risk of
ill-treatment simply by virtue of an individual being exposed to such
violence on return (ibid., § 115).
Accordingly,
in the present case the Court must examine whether substantial
grounds have been shown for believing that the applicants, if
deported, would face a real risk of being subjected to treatment
contrary to Article 3. In doing so, it will first consider the
general situation both in Mogadishu, which will be the point of their
return, and in the remainder of southern and central Somalia before
focusing on the foreseeable consequences of removal for each of the
applicants. However, before it can begin its assessment of risk on
return, it must address two preliminary issues which have arisen in
the present case: first, the relationship between Article 3 of
the Convention and article 15(c) of the Qualification Directive, and
secondly, the weight to be attached to country reports which
primarily rely on information provided by anonymous sources.
2. The relationship between Article 3 of the Convention
and article 15(c) of the Qualification Directive
(a) The parties’ submissions
The
applicants suggested that article 15(c) was clearly intended to
provide for situations falling short of the protection provided both
by article 15(b) of the Qualification Directive and Article 3 of
the Convention. They therefore accepted that there might be some
circumstances in which a serious threat to a civilian’s life or
person by reason of indiscriminate violence would not, without more,
be sufficient to constitute a violation of Article 3 of the
Convention. However, they submitted that in the context of their
proposed removal, the threat presented was such that the threshold
envisaged in NA v. the United Kingdom had been exceeded.
The
Government submitted that both the ECJ in Elgafaji and the
Court of Appeal in QD (Iraq) v Secretary of State for the Home
Department had correctly adopted the approach that article 15(c)
of the Qualification Directive was distinct from Article 3 of the
Convention and, as such, it enabled Member States of the European
Union to offer protection to asylum seekers over and above the
minimum standards imposed by Article 3.
In
particular, the Government submitted that this interpretation was
consistent with the overall objective of the Qualification Directive,
which was to set “minimum standards for the qualification and
status of third country nationals or stateless persons as refugees or
as persons who otherwise need international protection and the
content of the protection granted”. As such, it combined the
traditional criteria contained in the Geneva Convention with the
concept of “subsidiary protection status”, which drew
together the international obligation of Member States as set out in
the European Convention on Human Rights with the broader humanitarian
practices adopted by Member States towards individuals manifestly in
need of protection who did not necessarily qualify under either
Convention.
The
fact that the European Union had adopted a broader scope for
subsidiary protection did not mean that the same should necessarily
be transplanted into Article 3. That was not what was intended by the
adoption of the Directive, which clearly chose a wider scope than
that of the Convention. Rather, the Government submitted that the
more broadly-based standard of protection adopted by the European
Union might not be appropriate across the wider membership of the
Council of Europe, particularly in the absence of the express
agreement of the Contracting States.
Allied
to this, the Government submitted that the rigours of the
Qualification Directive were mitigated by a number of exclusions set
out in article 17 which were based on the conduct of the individual.
However, if article 15(c) were to be subsumed into Article 3 of the
Convention, these exclusions would not similarly be incorporated.
(b) The Court’s assessment
In
Elgafaji the ECJ held that article 15(c) would be violated
where substantial grounds were shown for believing that a civilian,
returned to the relevant country, would, solely on account of his
presence on the territory of that country or region, face a real risk
of being subjected to a threat of serious harm. In order to
demonstrate such a risk he was not required to adduce evidence that
he would be specifically targeted by reason of factors particular to
his personal circumstances (Elgafaji, cited above, § 35).
Nevertheless, the ECJ considered that such a situation would be
“exceptional” and the more the applicant could show that
he was 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
(Elgafaji, cited above, § 39).
The
jurisdiction of this Court is limited to the interpretation of the
Convention and it would not, therefore, be appropriate for it to
express any views on the ambit or scope of article 15(c) of the
Qualification Direction. However, based on the ECJ’s
interpretation in Elgafaji, the Court is not persuaded that
Article 3 of the Convention, as interpreted in NA, does not
offer comparable protection to that afforded under the Directive. In
particular, it notes that the threshold set by both provisions may,
in exceptional circumstances, be attained in consequence of a
situation of general violence of such intensity that any person being
returned to the region in question would be at risk simply on account
of their presence there.
3. The weight to be attached to the report of the
fact-finding mission to Nairobi (see paragraph 80, above)
(a) The parties’ submissions
The
applicants submitted that following NA. v. the United Kingdom,
no. 25904/07, §§ 118 – 122, 17 July 2008, BAILII: [2008] ECHR 616, little or
no weight should be attached to the report of the fact-finding
mission as it did not visit Somalia, did not appear to contact anyone
in Somalia, and the majority of “sources” were anonymous,
identified only as “an international NGO”, “a diplomatic
source”, or “security advisors”. No information was
provided about the extent of the sources’ presence in Somalia,
their roles within their respective organisations, or the type of
work (if any) that they carried out in Somalia. This was of
particular concern on account of the fact that so few international
NGOs and diplomatic missions had any presence in Somalia.
In
response, the Government submitted that such criticisms were
misplaced and unjustified. Although they acknowledged that the
mission did not travel to Somalia, they claimed that this was
pursuant to advice provided by the Foreign and Commonwealth Office
which warned British nationals against travel to Somalia. The Mission
went instead to Nairobi, which was the location of the African
Headquarters of the United Nations, the location of the highest
concentration of inter-governmental and
non-governmental
organisations operating in and with daily contact to the situation in
Somalia. In Nairobi, the Mission was able to interview a number of
contacts who had recently returned to Nairobi from Somalia, some of
whom had been in Somalia for a number of weeks in the period
immediately preceding the mission.
The
Government further acknowledged that the majority of sources were not
named in the report. However, they submitted that anonymity had been
granted at the sources’ request as they were concerned about
the risk to their operations and staff and they asked the Court to
take notice of the fact that the sources cited in the report by the
Norwegian Directorate of Immigration were also anonymous.
(b) The Court’s assessment
In
assessing the weight to be attributed to country material,
consideration must be given to its source, in particular its
independence, reliability and objectivity. In respect of reports, the
authority and reputation of the author, the seriousness of the
investigations by means of which they were compiled, the consistency
of their conclusions and their corroboration by other sources are all
relevant considerations (Saadi v. Italy [GC], no. 37201/06,
§ 143, ECHR 2008 .., BAILII: [2008] ECHR 179. and NA. v. the United Kingdom,
cited above, § 120).
The
Court also recognises that consideration must be given to the
presence and reporting capacities of the author of the material in
the country in question. In this respect, the Court observes that
States (whether the respondent State in a particular case or any
other Contracting or non-Contracting State), through their diplomatic
missions and their ability to gather information, will often be able
to provide material which may be highly relevant to the Court’s
assessment of the case before it. It finds that the same
consideration must apply, a fortiori, in respect of agencies
of the United Nations, particularly given their direct access to the
authorities of the country of destination as well as their ability to
carry out on-site inspections and assessments in a manner which
States and non-governmental organisations may not be able to do.
The Court appreciates the many difficulties faced by
governments and NGOs gathering information in dangerous and volatile
situations. It accepts that it will not always be possible for
investigations to be carried out in the immediate vicinity of a
conflict and, in such cases, information provided by sources with
first-hand knowledge of the situation may have to be relied on. The
Court will not, therefore, disregard a report simply on account of
the fact that its author did not visit the area in question and
instead relied on information provided by sources.
That
being said, where a report is wholly reliant on information provided
by sources, the authority and reputation of those sources and the
extent of their presence in the relevant area will be relevant
factors for the Court in assessing the weight to be attributed to
their evidence. The Court recognises that where there are legitimate
security concerns, sources may wish to remain anonymous. However, in
the absence of any information about the nature of the sources’
operations in the relevant area, it will be virtually impossible for
the Court to assess their reliability. Consequently, the approach
taken by the Court will depend on the consistency of the sources’
conclusions with the remainder of the available information. Where
the sources’ conclusions are consistent with other country
information, their evidence may be of corroborative weight. However,
the Court will generally exercise caution when considering reports
from anonymous sources which are inconsistent with the remainder of
the information before it.
In
the present case the Court observes that the description of the
sources relied on by the fact-finding mission is vague. As indicated
by the applicants, the majority of sources have simply been described
either as “an international NGO”, “a diplomatic
source”, or “a security advisor”. Such descriptions
give no indication of the authority or reputation of the sources or
of the extent of their presence in southern and central Somalia. This
is of particular concern in the present case, where it is accepted
that the presence of international NGOs and diplomatic missions in
southern and central Somalia is limited. It is therefore impossible
for the Court to carry out any assessment of the sources’
reliability and, as a consequence, where their information is
unsupported or contradictory, the Court is unable to attach
substantial weight to it.
4. The security situation in Mogadishu
(a) The parties’ submissions
The
applicants submitted that there had been increasing violence in
Mogadishu following the withdrawal of Ethiopian troops in January
2009. Human Rights Watch described how Mogadishu had been torn apart
by “indiscriminate warfare”, while UNHCR reported that
both al-Shabaab and Hizbul Islam had been accused of using the
civilian population as human shields. In 2010 the Asylum and
Immigration Tribunal in AM (Somalia) held that the situation
in Mogadishu was such that everyone except possibly prominent
businessmen or senior figures in the insurgency or in powerful
criminal gangs would be at risk if returned there (see paragraph 66,
above). The background information post-dating AM (Somalia) showed
that the situation had since deteriorated (see, for example,
paragraphs 121, 123 and 127, above).
The
applicants submitted that the number of civilian casualties in
Mogadishu had been immeasurable and the level of violence was only
set to increase. They had obtained a witness statement from a Mr
Kahiye Alim, a lawyer who had recently spoken with both General Ahmed
Jumal Geedi, the Chief of Army Staff, and Mr Warsame Mohammed Hassan,
the Second Deputy Mayor of Mogadishu. Mr Alim had been informed that
with the assistance of the new Ugandan troops, the Transitional
Federal Government, with the assistance of AMISOM, intended to go on
the offensive and retake those parts of Mogadishu which were under
the control of al-Shabaab. He had also been informed that following
the attempted suicide bombings at Mogadishu International Airport on
9 September 2010, the airport had been subject to daily shelling and
bombing.
The
applicants therefore submitted that the indiscriminate violence in
Mogadishu was currently at such a level of intensity as to pose a
risk to the life or person of any civilian in the capital.
The
Government submitted, with reference to the most recent country
reports, that Mogadishu was by no means a “no-go area”.
On the contrary, a number of sources interviewed by the fact-finding
mission had emphasised that, despite the dangers, there was still a
substantial degree of normality in Mogadishu and that the risk to
civilians appeared to be from being caught up in the crossfire and
not from being specifically targeted (see paragraph 87, above).
The
Government further argued that al-Shabaab had become more
sophisticated under the influence of foreign jihadists and, as a
consequence, the risks they posed to the general civilian populace
appeared to have lessened. In particular, they referred to the report
of the recent fact-finding mission, which indicated that al-Shabaab
was now targeting its attacks specifically against Transitional
Federal Government and AMISOM interests (see paragraph 83, above).
The Government also referred to the report of the Norwegian
Directorate of Immigration, which indicated that although conditions
varied significantly across different areas of Mogadishu, in the
areas controlled by al-Shabaab there were some positive signs, high
levels of law and order (see paragraph 115, above).
Consequently,
the Government contended that there were no substantial grounds for
believing that the applicants’ removal to Mogadishu would give
rise to a real risk of ill-treatment contrary to Article 3 of the
Convention.
(b) The Court’s assessment
In
the present case the applicants submitted that the indiscriminate
violence in Mogadishu was of a sufficient level of intensity to pose
a real risk to the life or person of any civilian in the capital.
Although the Court has previously indicated that it would only be “in
the most extreme cases” that a situation of general violence
would be of sufficient intensity to pose such a risk, it has not
provided any further guidance on how the intensity of a conflict is
to be assessed. However, the Court recalls that the Asylum and
Immigration Tribunal had to conduct a similar assessment in AM and
AM (Somalia) (cited above), and in doing so it identified the
following criteria: first, whether the parties to the conflict were
either employing methods and tactics of warfare which increased the
risk of civilian casualties or directly targeting civilians;
secondly, whether the use of such methods and/or tactics was
widespread among the parties to the conflict; thirdly, whether the
fighting was localised or widespread; and finally, the number of
civilians killed, injured and displaced as a result of the fighting.
While these criteria are not to be seen as an exhaustive list to be
applied in all future cases, in the context of the present case the
Court considers that they form an appropriate yardstick by which to
assess the level of violence in Mogadishu.
It
is not in dispute that towards the end of 2008 Mogadishu was not a
safe place to live for the great majority of its citizens. In the
most recent Country Guideline determination, AM & AM (Somalia)
(cited above), the then Asylum and Immigration Tribunal carefully
considered the intensity of the fighting, the security situation and
the extent of the population displacement and concluded that the
armed conflict in Mogadishu amounted to indiscriminate violence of
such a level of severity as to place the majority of the population
at risk of serious harm. However, it did not rule out that there
might be certain individuals who on the facts might be considered to
be able to live safely in the city, for example if they had close
connections with powerful actors in Mogadishu, such as prominent
businessmen or senior figures in the insurgency or in powerful
criminal gangs.
The
objective information would appear to suggest that the situation in
Mogadishu improved in 2009. The United Kingdom Border and Immigration
Agency Operational Guidance Note of 1 July 2010 indicated that a fall
in clashes between government troops and insurgents had led to a
substantial drop in the numbers of civilians killed in fighting in
Mogadishu in 2009 (see paragraph 99, above). This conclusion was
offered some support by the report of the Norwegian Directorate of
Immigration Country of Origin Centre, which recorded that although
the civilian population of Mogadishu was still the victim of
indiscriminate violence, it was “to a slightly lesser extent
than previously” (see paragraph 111, above).
Nevertheless,
the most recent reports indicate that all significant parties to the
conflict have continued to engage in indiscriminate violence,
conducting numerous mortar attacks against enemy forces in densely
populated areas of Mogadishu without regard to the civilian
population. Moreover, all parties have continued to use mortars
without spotters or guidance systems, firing indiscriminately in the
general direction of opposition fire or bombarding areas such as
Bakara Market which were considered to be opposition strongholds (see
paragraphs 82, 123, 127, 132, 137, 139-140 and 160, above).
Furthermore,
the reports indicate that the security situation in Mogadishu
deteriorated in 2010. On 9 September 2010 the Secretary General
of the United Nations reported that volatility and insecurity had
increased in Mogadishu (see paragraph 123, above) and on
16 September 2010 Shamsul Bari, the Independent Expert,
reported that at the time of drafting his report fighting had once
again broken out in Mogadishu and hospitals were swamped with
war-wounded (see paragraph 127, above). Estimates of civilian
casualties and displaced persons vary from one report to another. The
Secretary General reported that from 20 March 2010 to 11 July
2010 approximately 1,600 civilian casualties had been admitted to the
two main hospitals in Mogadishu (see paragraph 123, above). In
addition, 179,000 people had been displaced in Mogadishu during the
first quarter of 2010 and a further 75,000 people had been displaced
during the second quarter. The UNHCR reported that 20-50 civilians
were dying each week in Mogadishu and that there had been over 900
civilian casualties in Mogadishu in March and April 2010
(see paragraph 132, above). Amnesty International’s
Briefing Paper of 18 October 2010 suggested that a further 230
civilians had been killed and 400 injured in fighting during the last
week of August 2010 and the first week of September 2010 and that
42,400 people had been displaced from around and within Mogadishu
since 23 August 2010 (see paragraphs 145 and 148, above). Meanwhile,
the Independent Expert referred to statistics produced by the Elman
Peace Centre of Somalia, which recorded that 918 civilians had
died in the first seven months of 2010 and a further 2,555 were
injured (see paragraph 127, above).
Whatever
the precise figures, it is clear that since the beginning of 2010 the
ongoing fighting in Mogadishu has resulted in thousands of civilian
casualties and the displacement of hundreds of thousands of people.
Although there were reports that al-Shabaab’s tactics had
become more sophisticated following the recruitment of foreign
fighters, none of the reports suggested that the use of new tactics
had in any way reduced the risk to civilians. On the contrary, one
source told the fact-finding mission that the new tactics introduced
by foreign fighters included random attacks on civilians (see
paragraph 83, above). The report of the Norwegian Directorate also
suggested that the professionalisation of al-Shabaab operations
resulted in their being implemented with “greater brutality”
(see paragraph 112, above).
The
situation in Mogadishu has been described by the Norwegian
Directorate as unpredictable, capable of changing on a daily basis
(see paragraphs 110 and 118, above). While it would appear that
at any given time the fighting is more intense in some areas than in
others, the report of the Norwegian Directorate indicated that the
power balance in districts and urban areas could change almost from
day to day and, as a consequence, information on area control could
become out of date very quickly (see paragraph 110, above). In
particular, the report described how one area which had previously
been considered safe was now “shot to pieces” and all its
inhabitants had fled (see paragraph 118, above).
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.
The
Court notes that in AM & AM (Somalia) the Asylum and
Immigration Tribunal left open the possibility that certain
individuals who were exceptionally well-connected to “powerful
actors” in Mogadishu might be able to obtain protection and
live safely in the city. The Court has not received any submissions
specifically addressed to this issue and observes that it is one on
which the country reports have been largely silent. As Article 3
requires the decision-maker to focus on the foreseeable consequences
of removal for each individual applicant, it would not exclude that
it might be shown that a well-connected individual would be protected
in Mogadishu. However, it considers it likely that this would be
rare. First, in the light of the Tribunal decision it would appear
that only connections at the highest level would be in a position to
afford such protection. For example, it would not be enough to show
that an individual was a member of a majority clan. Secondly, it
recalls that in HH (Somalia) and Others v Secretary of State
for the Home Department [2010] EWCA Civ 426 the Court of Appeal
found that an applicant who had not been to Somalia for some time was
unlikely to have the contacts necessary to afford him protection on
return. It is therefore unlikely that a Contracting State could
successfully raise such an argument unless the individual in question
had recently been in Somalia.
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.
5. Conditions in southern and central Somalia (outside
Mogadishu)
(a) The parties’ submissions
The
applicants submitted that it would be unrealistic for them to travel
to another part of southern and central Somalia. The entry point to
Somalia was Mogadishu International Airport and as a consequence of
the intense level of violence prevalent in and around Mogadishu,
travelling, or attempting to travel, from the airport to another part
of southern and central Somalia would expose them to a real risk of
treatment proscribed by Article 3.
The
applicants relied on the UNHCR Eligibility Guidelines, which did not
consider that there was any internal flight or relocation alternative
available inside southern and central Somalia. Throughout 2009 and
2010 there had been widespread violence throughout the region and
UNHCR considered that there was substantial evidence of
generalised violence resulting in indiscriminate harm (see paragraphs
132 - 134, above).
In
addition to the high levels of violence, there had also been a marked
increase in detention, torture, unlawful killing and “ruthless
attacks” in both Mogadishu and elsewhere in southern and
central Somalia. Amnesty International reported a worrying trend of
individuals stoned to death, publicly shot dead, amputated and
flogged on the orders of quasi-judicial bodies operated by local
leaders linked to armed groups (see paragraphs 164 - 168,
above).
The
applicants further submitted that if returned to Mogadishu there was
at least a reasonable likelihood that they would be forced into IDP
camps and the dire humanitarian conditions in these camps and
makeshift settlements therefore had to be taken into account in
assessing compliance with Article 3.
As
the IDP camps and settlements were virtually inescapable, the
applicants argued that they were similar to detention camps and, as
such, the Court should apply by analogy its jurisprudence on
detention conditions. The applicants argued that the conditions in
the camps and settlements resembled, but were very much worse than,
conditions which the Court had found to violate Article 3 in respect
of detainees (see, for example, Dougoz v. Greece, no.
40907/98, ECHR 2001 II, BAILII: [2001] ECHR 213, Peers v. Greece, no. 28524/95,
ECHR 2001 III, BAILII: [2001] ECHR 296, S.D. v. Greece, no. 53541/07, 11 June
2009, BAILII: [2009] ECHR 2050,, Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03,
ECHR 2008 ... (extracts) BAILII: [2008] ECHR 1900, and Al-Agha v. Romania, no.
40933/02, 12 January 2010, BAILII: [2010] ECHR 1995). They lacked the basic necessities of life
such as food, water and healthcare. The level of violence, including
violence against women and children, meant that many lived in
constant fear for their lives or physical safety. In addition,
although 70 percent of people located in the central Somalia region
were in need of humanitarian assistance, UNHCR and other NGOs
experienced insuperable difficulties in accessing many key locations.
The applicants therefore submitted that being forced to have recourse
to these camps would engage the United Kingdom’s
responsibilities under Article 3 of the Convention.
The
Government submitted that outside Mogadishu, much of southern and
central Somalia was controlled by al-Shabaab. Recent reports,
including that of the fact-finding mission, indicated that these
areas were more stable and that harvests had increased. The
Government accepted that the increased stability has carried with it
an increase in human rights abuses, apparently arising from the
extreme nature of al-Shabaab’s interpretation and application
of Sharia law. However, they contended that civilians would be safe
provided that they “followed the rules”.
The
Government observed that according to recent reports, the travel
situation within Somalia had improved significantly since early 2009.
Members of the diaspora flew to Mogadishu regularly, with an
established route from Nairobi carrying thousands of passengers in
the first eight months of 2010. From information provided to the
fact-finding mission it appeared that although returning Somalis
would usually have to make arrangements with family members to be met
on their return, armed escorts were not necessarily needed. In fact,
evidence suggested that Somali citizens could use taxis to travel
from the airport to the city (see paragraphs 84 - 85, above).
The
Government submitted that security had also improved with regard to
travel between the different regions of Somalia and the general
impression was that the population could move freely in both
Government controlled areas and areas controlled by other groups.
Improved security was in part due to the removal of many roadblocks.
Although checkpoints still operated, most of these were operated by
al-Shabaab in order to check persons and goods and to ensure that its
strict Islamic codes were being enforced. This, combined with the
fact that al-Shabaab was reported to have largely eradicated crimes
such as robbery, theft and banditry, had contributed to the reduction
in the risks of travelling (see paragraph 90, above).
Insofar
as the applicants were relying on the “dire” humanitarian
conditions in Somalia as creating the risk of ill-treatment contrary
to Article 3 of the Convention, the Government submitted that
the principles established in N. v. the United Kingdom
[GC], no. 26565/05, §§ 42 – 45, 27 May 2008, BAILII: [2008] ECHR 453, were
applicable. Therefore, humanitarian conditions would only reach the
threshold of Article 3 if the circumstances obtaining in the
receiving State were “very exceptional”, it was “highly
probable” that the applicant would not have access to the basic
necessities of life, and that these deficiencies would result in an
immediate threat to life or the impossibility of maintaining human
dignity.
The
Government accepted that the humanitarian situation in Somalia was
undoubtedly grave. However, they believed that recent reporting
highlighted more positive signs. For example, according to UNHCR
statistics, there were considerably fewer people in the Afgooye
Corridor than there had been previously and a well-informed
international source had told the Norwegian Directorate of
Immigration that the actual number might be even lower as there was
evidence to suggest that the internal refugee figures were
exaggerated.
Indeed,
the fact-finding mission had indicated that the Afgooye Corridor was
taking on a more permanent character, with an increasing number of
businesses operating in the area. One interviewee had recorded that
satellite pictures showed evidence of settling, urbanisation and
normal life (see paragraph 95, above). Away from the Afgooye
Corridor, there were a limited number of IDP settlements as it was
more common for displaced persons to find homes with relatives in
other areas. In this regard, the clan system remained important as
clan members were prepared to share resources as far as possible.
The
Government also noted that the recent reporting had consistently
identified an increase in human rights abuses in areas controlled by
al-Shabaab, based largely on that group’s extreme
interpretation and application of Sharia law. Women in particular
were considered to be particularly at risk of human rights abuses,
although there was also a significant risk to men and children of
forced recruitment. However, the Government submitted that while the
al-Shabaab regime was undoubtedly repressive, there was evidence to
suggest that those who abided by their rules could live their day to
day lives freely (see paragraph 92, above).
The
Government therefore submitted that the dire humanitarian conditions
which the applicants might face on return to Somalia would not cross
the “very exceptional” threshold as they could show no
more than a speculative risk, based on a “worst case scenario”.
Consequently,
the Government submitted that the level of risk likely to be faced by
the applicants if they were to travel from Mogadishu into central or
southern Somalia was not sufficient to constitute a breach of Article
3.
(b) The Court’s assessment
α. The internal flight alternative
The
Court observes that in the present case the Government intends to
return both applicants to Mogadishu. However, it cannot limit its
consideration of the risk on return to an assessment of the
conditions in Mogadishu as the Asylum and Immigration Tribunal found
that despite the existence of a real risk of serious harm in the
capital, it would be possible for the applicants to relocate to a
safer region in southern or central Somalia.
In
the United Kingdom an application for asylum or for subsidiary
protection will fail if the decision-maker considers that it would be
reasonable – and not unduly harsh – to expect the
applicant to relocate (Januzi, Hamid, Gaafar
and Mohammed v Secretary of State for the Home Department
[2006] UKHL 5 and AH (Sudan) v Secretary of
State for the Home Department [2007] UKHL 49). The Court
recalls that Article 3 does not, as such, preclude Contracting States
from placing reliance on the existence of an internal flight
alternative in their assessment of an individual’s claim that a
return to his country of origin would expose him to a real risk of
being subjected to treatment proscribed by that provision (Salah
Sheekh v. the Netherlands, no. 1948/04, § 141, ECHR 2007 I
(extracts), BAILII: [2007] ECHR 36, Chahal v. the United Kingdom, 15 November 1996, BAILII: [1996] ECHR 54, §
98, Reports of Judgments and Decisions 1996 V and Hilal
v. the United Kingdom, no. 45276/99, §§ 67 –
68, ECHR 2001 II BAILII: [2001] ECHR 214). However, the Court has held that reliance on
an internal flight alternative does not affect the responsibility of
the expelling Contracting State to ensure that the applicant is not,
as a result of its decision to expel, exposed to treatment contrary
to Article 3 of the Convention (Salah Sheekh v. the Netherlands,
cited above, § 141 and T.I. v. the United Kingdom
(dec.), no. 43844/98, ECHR 2000-III, BAILII: [2000] ECHR 705). Therefore, as a precondition of
relying on an internal flight alternative, certain guarantees have to
be in place: the person to be expelled must be able to travel to the
area concerned, gain admittance and settle there, failing which an
issue under Article 3 may arise, the more so if in the absence of
such guarantees there is a possibility of his ending up in a part of
the country of origin where he may be subjected to ill-treatment
(Salah Sheekh v. the Netherlands, cited above, § 141).
Although
it is clear that Somali nationals would not be able to gain
admittance to Somaliland or Puntland unless they were born there or
had strong clan connections to the region (see paragraphs 79 and 103,
above), the Court is not aware of the existence of any similar
obstacles which would prevent a Somali returnee from gaining
admittance to another part of southern and central Somalia. However,
in view of the humanitarian crisis and the strain that it has placed
both on individuals and on the traditional clan structure, in
practice the Court does not consider that a returnee could find
refuge or support in an area where he has no close family connections
(see paragraphs 114, 119 and 138, above). If a returnee either has no
such connections or if he could not safely travel to an area where he
has such connections, the Court considers it reasonably likely that
he would have to seek refuge in an IDP settlement or refugee camp.
Therefore, in considering the internal flight alternative, the Court
will first consider whether a returnee would be exposed to a risk of
ill-treatment either in transit or upon settling in another part of
southern and central Somalia before considering whether he would be
at risk of ill-treatment in an IDP or refugee camp on account of the
humanitarian conditions there.
β. The risk in transit or upon settling
elsewhere in southern and central Somalia
Although
there are a number of airports in southern and central Somalia, all
applicants facing removal from the United Kingdom have been issued
with removal directions to Mogadishu International Airport. The
airport is currently controlled by the Transitional Federal
Government and AMISOM and, as a consequence, it has been the subject
of a number of attacks by al-Shabaab (see paragraphs 71 and 85,
above). Nevertheless, the airport appears to be in regular use, with
the EU Special Representative reporting that 15 - 18 flights were
arriving every day (see paragraph 84, above). Consequently, the Court
does not consider that there is a real risk that a person being
returned to southern and central Somalia would be subjected to
ill-treatment at the airport.
Although
the Court has found that Mogadishu is not a safe place for the
majority of Somalis, it notes that a returnee could travel from
Mogadishu International Airport to another part of southern and
central Somalia without entering the city. However, the safety of
this onward journey will vary from case to case depending on the
returnee’s destination.
The
country reports indicate that there has been fighting in the towns of
Beletweyne, Kismayo, Dhusamareb, Afmadow, various towns in the
Galgaduud region, the Gedo and Bakool regions, the Lower Juba region
and Lower Shabelle (see paragraphs 100, 118, 121, 149, 161 and 179
above). Although there is little information available concerning the
intensity of the fighting in these areas, it would appear that it is
the conflict in Mogadishu which is primarily responsible for
Somalia’s civilian casualties and widespread displacement (see
paragraphs 100, 109, 120, 123 124, 132, 145, 159, 169 and 178,
above). Moreover, the reports describe the fighting outside Mogadishu
as sporadic and localised around key strategic towns (see paragraphs
120 and 161, above). Consequently, while there is fighting in some
areas, other areas have remained comparatively stable (see paragraphs
92, 120, 144 and 159, above).
The
Court is therefore prepared to accept that it might be possible for a
returnee to travel from Mogadishu International Airport to another
part of southern and central Somalia without being exposed to a real
risk of treatment proscribed by Article 3 solely on account of the
situation of general violence. However, this will very much depend
upon where a returnee’s home area is. It is not possible for
the Court to assess the level of general violence in every part of
southern and central Somalia and, even if it were to undertake such
an exercise, it is likely that its conclusions would become outdated
very quickly. Consequently, if the applicant’s home is one
which has been affected by the conflict, the conditions there will
have to be assessed against the requirements of Article 3 at the time
of removal.
The
Court observes that the situation of general violence is not the only
risk that a returnee might have to face if he were to relocate to
another part of southern and central Somalia. According to the
country reports, the areas with the lowest levels of generalised
violence are the areas under the control of al-Shabaab (see
paragraphs 92 and 159, above), which are also the areas reported to
have the worst human rights conditions (see paragraphs 94, 104, 128
and164-168, above). Consequently, even if a returnee could travel to
and settle in his home area without being exposed to a real risk of
ill-treatment on account of the situation of general violence, he
might still be exposed to a real risk of ill-treatment on account of
the human rights situation.
It
is clear that in the areas under their control al-Shabaab is
enforcing a particularly draconian version of Sharia law which goes
well beyond the traditional interpretation of Islam in Somalia (see
paragraphs 94 and 164, above) and in fact amounts to “a
repressive form of social control” (see paragraph 164, above).
The reports indicate that al-Shabaab are concerned with every little
detail of daily life, including men’s and women’s style
of dress, the length of men’s beards, the style of music being
listened to and the choice of mobile phone ringtone (see paragraphs
164 – 165, above). Women appear to be particularly targeted. In
addition to strict dress codes, women in al-Shabaab controlled areas
are not permitted to go out in public with men, even with male
relatives, and have been ordered to close their shops as commercial
activity permitted them to “mix with men” (see paragraphs
104 and 166 – 167, above). There were also reports of
“systematic” forced recruitment by al-Shabaab of both
adults and children in the areas under its control (see paragraphs
91, 93, 126 and 163, above).
Al-Shabaab’s
strict interpretation of Sharia law does not apply only to those
living in areas under its control, but also to those travelling
through these areas. According to the country reports, al-Shabaab has
established checkpoints at the exit/entry routes to towns under its
control, where goods and people are searched to ensure that its
strict Islamic codes are complied with (see paragraphs 87, 90 and 101
above). Persons not obeying al-Shabaab’s rules could experience
difficulties at these checkpoints. For example, there were reports of
women being flogged at checkpoints because they had been sitting
beside a man in a vehicle (see paragraph 167, above). Moreover, there
were also reports of young men and children being forcibly recruited
at checkpoints (see paragraphs 91, above).
In spite of the repressive regime in place, a number of sources told
the fact-finding mission that areas controlled by al-Shabaab were
generally safe for Somalis provided that they were able to “play
the game” and avoid the attention of al-Shabaab by obeying
their rules (see paragraph 92, above). However, as al-Shabaab only
began seizing parts of southern and central Somalia following the
fall of the Union of Islamic Courts in late 2006, the Court considers
it unlikely that a Somali with no recent experience of living in
Somalia would be adequately equipped to “play the game”,
with the risk that he would come to the attention of al-Shabaab,
either while travelling through or having settled in an al-Shabaab
controlled area. The Court considers that this risk would be even
greater for Somalis who have been out of the country long enough to
become “westernised” as certain attributes, such as a
foreign accent, would be impossible to disguise.
It
is not possible to predict with any certainty the fate of a returnee
who came to the attention of al-Shabaab for failing to comply with
their rules. The reports suggest that punishments inflicted by
al-Shabaab can include stoning, amputation, flogging and corporal
punishment (see paragraphs 104 and 164 – 168, above), all
of which would attain the minimum level of severity required to fall
within the scope of Article 3 (see, for example, Jabari v.
Turkey, no. 40035/98, § 41, ECHR 2000 VII, BAILII: [2000] ECHR 369 and A. v.
the United Kingdom, 23 September 1998, § 22, Reports of
Judgments and Decisions 1998 VI, BAILII: [1998] ECHR 85). The Court accepts that in
all likelihood, the punishment would depend on the gravity of the
infringement but the Court cannot ignore reports that Somalis have
been beaten or flogged for relatively minor infringements, such as
playing scrabble (see paragraph 164, above), watching World Cup
matches (see paragraph 164, above), and wearing “inappropriate”
clothing (see paragraphs 165 – 166, above).
Consequently,
the Court considers that a returnee with no recent experience of
living in Somalia would be at real risk of being subjected to
treatment proscribed by Article 3 in an al-Shabaab controlled area.
Accordingly, if a returnee’s home area is in an al-Shabaab
controlled area, or if it could not be reached without travelling
through an al-Shabaab controlled area, the Court does not consider
that he could relocate within Somalia without being exposed to a real
risk of Article 3 ill-treatment.
γ. Humanitarian conditions in refugee
and IDP camps
In
Salah Sheekh v. the Netherlands, cited above, the Court held
that socio-economic and humanitarian conditions in a country of
return did not necessarily have a bearing, and certainly not a
decisive bearing, on the question whether the persons concerned would
face a real risk of
ill-treatment within the meaning of Article 3
in those areas (§ 141). However, in N. v. the United Kingdom,
cited above, the Court held that although the Convention was
essentially directed at the protection of civil and political rights,
the fundamental importance of Article 3 meant that it was necessary
for the Court to retain a degree of flexibility to prevent expulsion
in very exceptional cases. It therefore held that humanitarian
conditions would give rise to a breach of Article 3 of the Convention
in very exceptional cases where the humanitarian grounds against
removal were “compelling” (§ 42).
In
the recent case of M.S.S. v. Belgium and Greece [GC],
no. 30696/09, 21 January 2011, BAILII: [2011] ECHR 108;, the Court
stated that it had not excluded the possibility that the
responsibility of the State under Article 3 might be engaged in
respect of treatment where an applicant, who was wholly dependent on
State support, found himself faced with official indifference in a
situation of serious deprivation or want incompatible with human
dignity (§ 253). In that case,
the applicant had spent months living in a state of the most extreme
poverty, unable to cater for his most basic needs: food, hygiene and
a place to live. Added to that, the Court noted the applicant’s
ever-present fear of being attacked and robbed and the total lack of
any likelihood of his situation improving (§ 254). It held that
the conditions in which the applicant was living reached the Article
3 threshold and found Greece in breach of that Article as it was the
State directly responsible for the applicant’s living
conditions (§ 264). It also found Belgium to be in breach of
Article 3 because, inter alia, it had transferred the
applicant to Greece and thus knowingly exposed him to living
conditions which amounted to degrading treatment (§ 367).
In
the present case the Government submitted, albeit prior to the
publication of the Court’s decision in M.S.S. v.
Belgium and Greece, that the appropriate test for assessing
whether dire humanitarian conditions reached the Article 3 threshold
was that set out in N. v. the United Kingdom. Humanitarian
conditions would therefore only reach the Article 3 threshold in very
exceptional cases where the grounds against removal were
“compelling”.
281. The
Court recalls that N. v. the United Kingdom concerned the
removal of an HIV-positive applicant to Uganda, where her lifespan
was likely to be reduced on account of the fact that the treatment
facilities there were inferior to those available in the United
Kingdom. In reaching its conclusions, the Court noted that the
alleged future harm would emanate not from the intentional acts or
omission of public authorities or non-State bodies but from a
naturally occurring illness and the lack of sufficient resources to
deal with it in the receiving country. The Court therefore relied on
the fact that neither the applicant’s illness nor the inferior
medical facilities were caused by any act or omission of the
receiving State or of any non-State actors within the receiving
State.
If
the dire humanitarian conditions in Somalia were solely or even
predominantly attributable to poverty or to the State’s lack of
resources to deal with a naturally occurring phenomenon, such as a
drought, the test in N. v. the United Kingdom may well have
been considered to be the appropriate one. However, it is clear that
while drought has contributed to the humanitarian crisis, that crisis
is predominantly due to the direct and indirect actions of the
parties to the conflict. The reports indicate that all parties to the
conflict have employed indiscriminate methods of warfare in densely
populated urban areas with no regard to the safety of the civilian
population (see paragraphs 82, 123, 127, 132, 137, 139-140 and 160,
above). This fact alone has resulted in widespread displacement and
the breakdown of social, political and economic infrastructures.
Moreover, the situation has been greatly exacerbated by al-Shabaab’s
refusal to permit international aid agencies to operate in the areas
under its control, despite the fact that between a third and a half
of all Somalis are living in a situation of serious deprivation (see
paragraphs 125, 131, 169, 187 and 193, above).
Consequently,
the Court does not consider the approach adopted in N. v. the
United Kingdom to be appropriate in the circumstances of the
present case. Rather, it prefers the approach adopted in M.S.S.
v. Belgium and Greece, which requires it to have regard to
an applicant’s ability to cater for his most basic needs, such
as food, hygiene and shelter, his vulnerability to ill-treatment and
the prospect of his situation improving within a reasonable
time-frame (see M.S.S. v. Belgium and Greece, cited
above, § 254).
The
reports indicate that the conditions for internally displaced persons
in southern and central Somalia are dire. Prior to the recent failure
of the rains, the reports indicated that over half of Somalia’s
population was dependent on food aid, and many of those people lived
in the areas from which the WFP had withdrawn (see paragraph 169,
above). Two million people, representing more than a quarter of the
population of Somalia, faced a humanitarian crisis (see paragraph
131, above). The United Nations estimated that that figure had
already risen to 2.4 million, nearly a third of the population of
Somalia, and that the situation would only deteriorate further if the
rains continued to fail (see paragraphs 193 and 194, above). However,
despite the humanitarian crisis, al-Shabaab continues to deny
international NGOs access to areas under its control (see paragraphs
94, 105, 117, 122, 141-142, 162, 169-170, 181-182 and 186, above).
The
largest concentration of IDPs is in the Afgooye Corridor. It is
impossible to state with any degree of accuracy how many IDPs
currently live there, but the most recent estimates indicate that it
may be as many as 410,000 people. It is exceptionally difficult for
aid agencies to access the corridor (see paragraphs 95, 122 and 143,
above) and recent reports suggest that IDPs are being forced to
return to Mogadishu in search of food and water (see paragraph 193,
above). IDPs in the camps also appear to be extremely vulnerable to
exploitation and crime. Both adults and children displaced in the
Afgooye Corridor are being forcibly recruited to fight for al-Shabaab
(see paragraph 93, above) and there is a high prevalence of sexual
violence in the area (see paragraph 129, above).
The
Government submitted that there is evidence of increased urbanisation
of the Afgooye Corridor. Although this assertion is supported by a
number of the country reports, it is not clear to the Court whether
or not urbanisation has improved conditions for the majority of IDPs.
In fact, some reports suggest that IDPs are experiencing increasing
difficulties in finding shelter in the Afgooye Corridor as landlords
are either selling land that IDPs live on or are charging rent that
they cannot afford (see paragraphs 95 and 189, above).
Unlike
those in the Afgooye Corridor, NGOs have access to the Dadaab camps
in Kenya and both Amnesty International and Human Rights Watch have
published detailed reports documenting the conditions there. Both
organisations reported the difficulties experienced by refugees in
reaching these camps following the closure of the Kenyan border
(see paragraphs 152, 171-174, above). In particular, there are
numerous reports of refugees being arbitrarily detained and/or abused
by Kenyan police officers (see paragraphs 153, 154 and 171-173,
above), preyed upon by criminal gangs (see paragraph 174, above), and
in some cases being returned to Somalia unless they agreed to pay a
bribe (see paragraphs 153, 171 and 173, above).
Although
UNHCR have a presence in the camps and humanitarian assistance is
available, the reports indicate that the camps are severely
overcrowded. The camps initially were intended to hold approximately
90,000 refugees but the most recent reports indicate that
approximately 280,000 registered refugees are now living there (see
paragraph 155, above). As a result of the overcrowding, new refugees
cannot build shelters and instead have to stay with relatives and/or
clan members (see paragraph 155, above). In addition, many refugees
complain that the allocation of water is insufficient as the water
infrastructure was only designed for one third of the number of
people currently living in the camps (see paragraph 155, above).
There
were also reports of insecurity within the camps, with high levels of
theft and sexual violence. This appeared to be in part due to a
minimal police presence (see paragraph 176, above) and in part due to
police inaction when confronted with reports of crime or sexual
violence (see paragraph 176, above). In addition, there were reports
that the Kenyan authorities had been taking advantage of vulnerable
refugees by recruiting them to fight for the Transitional Federal
Government in Somalia (see paragraph 157, above).
Both
the report of Amnesty International and that of Human Rights Watch
indicated that refugees were not permitted to leave the camps, except
in exceptional circumstances, and refugees found outside the camps
without “movement passes” were arrested, fined and
imprisoned for months at a time (see paragraphs 158 and 177, above).
In
light of the above, the Court considers that the conditions both in
the Afgooye Corridor and in the Dadaab camps are sufficiently dire to
amount to treatment reaching the threshold of Article 3 of the
Convention. IDPs in the Afgooye Corridor have very limited access to
food and water, and shelter appears to be an emerging problem as
landlords seek to exploit their predicament for profit. Although
humanitarian assistance is available in the Dadaab camps, due to
extreme overcrowding access to shelter, water and sanitation
facilities is extremely limited. The inhabitants of both camps are
vulnerable to violent crime, exploitation, abuse and forcible
recruitment. Moreover, the refugees living in – or, indeed,
trying to get to – the Dadaab camps are also at real risk of
refoulement by the Kenyan authorities. Finally, the Court
notes that the inhabitants of both camps have very little prospect of
their situation improving within a reasonable timeframe. The refugees
in the Dadaab camps are not permitted to leave and would therefore
appear to be trapped in the camps until the conflict in Somalia comes
to an end. In the meantime, the camps are becoming increasingly
overcrowded as refugees continue to flee the situation in Somalia.
Although the IDPs in the Afgooye Corridor are permitted to leave, in
reality the only place they are able to return to is Mogadishu, which
the Court has found not to be a safe place for the vast majority of
civilians. Consequently, there is also little prospect of their
situation improving while the conflict continues.
Accordingly,
the Court finds that any returnee forced to seek refuge in either
camp would be at real risk of Article 3 ill-treatment on account of
the dire humanitarian conditions. Although there is little
information regarding the situation in other IDP settlements in
Somalia, from the information that is available the Court sees little
reason to believe that the conditions there would be any better than
those in the Afgooye Corridor or in the Dadaab camps. If anything,
the situation in those settlements is likely to be worse as there has
been less publicity concerning the plight of their inhabitants and
there is therefore even less chance that they might receive
humanitarian assistance.
6. Summary of the Court’s conclusions
In
conclusion, the Court considers that the situation of general
violence in Mogadishu is sufficiently intense to enable it to
conclude that any returnee would be at real risk of Article 3
ill-treatment solely on account of his presence there, unless it
could be demonstrated that he was sufficiently well connected to
powerful actors in the city to enable him to obtain protection (see
paragraph 249, above).
Nevertheless,
Article 3 does not preclude the Contracting States from placing
reliance on the internal flight alternative provided that the
returnee could travel to, gain admittance to and settle in the area
in question without being exposed to a real risk of Article 3
ill-treatment. In this regard, the Court accepts that there may be
parts of southern and central Somalia where a returnee would not
necessarily be at real risk of Article 3
ill-treatment solely on
account of the situation of general violence (see paragraph 270,
above). However, in the context of Somalia, the Court considers that
this could only apply if
the applicant had close family connections in the area concerned,
where he could effectively seek refuge. If he
has no such connections, or if those connections are in an area which
he could not safely reach, the Court considers that there is a
likelihood that he would have to have recourse to either an IDP or
refugee camp (see paragraph 266, above).
If
the returnee’s family connections are in a region which is
under the control of al-Shabaab, or if it could not be accessed
except through an al-Shabaab controlled area, the Court does not
consider that he could relocate to this region without being exposed
to a risk of ill-treatment unless it could be demonstrated that he
had recent experience of living in Somalia and could therefore avoid
coming to the attention of al-Shabaab (see paragraph 276,
above).
Where
it is reasonably likely that a returnee would find himself in an IDP
camp, such as those in the Afgooye Corridor, or in a refugee camp,
such as the Dadaab camps in Kenya, the Court considers that there
would be a real risk that he would be exposed to treatment in breach
of Article 3 on account of the humanitarian conditions there (see
paragraph 295, above).
7. Application of the aforementioned principles to the
applicants’ cases
(a) The first applicant
α. The parties’ submissions
The
first applicant submitted that he was at an enhanced risk of torture
and ill-treatment over and above that which arose solely from being
returned to Somalia on account of the fact that he was from a
minority clan, the Reer Hamar. He relied on the report of Dr Virginia
Luling, prepared in 2007 in the course of the domestic proceedings,
which concluded that, as claimed, he belonged to the Benadiri
Shanshiya (a sub-clan of the Reer Hamar) on the basis of his
knowledge of that clan, his dialect, his appearance and on the basis
of information provided by a third party concerning the identity of
his father. As a member of a minority clan whose family had either
fled persecution or been killed, he would be unable to obtain any
clan protection in Somalia. Moreover, as he had claimed asylum in the
United Kingdom at the age of sixteen, and had not lived in Somalia
for over seven years, he would be seen as a westernised outsider.
The
first applicant further submitted that he would be unable to cope on
return as he suffered from Post-Traumatic Stress Disorder (“PTSD”).
He submitted a psychiatric report prepared by Dr Paul Monks, a
Consultant General and Forensic Psychiatrist, on 18 August 2008.
Dr Monks was of the opinion that the first applicant suffered
PTSD which was caused by witnessing the rape of his mother and the
murder of his father and sister at the hands of militia. His symptoms
included evolving depressive symptoms which were exacerbated by his
imprisonment and the uncertainty surrounding his future. His
psychiatric problems had resulted in repeated self-harm and suicidal
acts, although it was noted that his PTSD symptoms appeared to be
partially resolving.
The
Government did not accept that the first applicant had conclusively
demonstrated that he was a member of a minority clan. Dr Luling
had interviewed the applicant in August 2007, nearly four years after
his arrival in the United Kingdom and some two years after the
Adjudicator had rejected his claim that he was a member of the Reer
Hamar. The Government therefore submitted that he had had an
opportunity to carry out basic research into the Reer Hamar in the
period before his interview and the answers relied on by Dr Luling as
demonstrating knowledge of the sub-clan was all based on information
which would have been in the public domain. With regard to the first
applicant’s dialect, Dr Luling did not explain on what basis
the interpreter was qualified to carry out an assessment of the
language used and she did not consider alternative explanations for
the mixture of Reer Hamar and general dialect allegedly spoken by
him. In particular, the Government relied on the report of the
Norwegian Directorate of Immigration, which noted that other Somalis
growing up and living in the same neighbourhood as the Reer Hamar
probably also know and speak the Hamar dialect.
The
Government also noted that the first applicant purported to originate
from Qoryoley, a small town to the south of Mogadishu in an area
currently controlled by al-Shabaab. In light of this and all the
other recent information, the Government submitted that the level of
risk likely to be faced by him if he were to travel from Mogadishu
into central or southern Somalia, and in particular to his home town,
was not sufficient to constitute a breach of Article 3 of the
Convention.
β. The Court’s assessment
In
view of its findings at paragraph 249, above, the Court finds that if
the first applicant were to remain in Mogadishu, there would be a
real risk that he would be subjected to Article 3 ill-treatment.
As
the first applicant originates from Qoryoley, the Court accepts that
he might have close family who could support him there. However, the
town is currently under the control of al-Shabaab and, as the first
applicant arrived in the United Kingdom in 2003, when he was only
sixteen years old, the Court considers that there is a real risk he
would be subjected to Article 3 ill-treatment by al-Shabaab if
he were to attempt to relocate there.
The
evidence submitted to the Court does not suggest that he has family
elsewhere in southern and central Somalia. Consequently, as he could
not safely travel to Qoryoley, it is likely that he would find
himself in an IDP settlement such as the Afgooye Corridor or in a
refugee camp such as the Dadaab camps. The Court has already found
that the conditions in these camps are sufficiently dire to reach the
Article 3 threshold and it notes that the first applicant would be
particularly vulnerable on account of his psychiatric illness.
The
Court therefore concludes that the removal of the first applicant to
Mogadishu would violate his rights under Article 3 of the Convention.
(b) The second applicant
α The parties’ submissions
The
second applicant submitted that he would be at increased risk in
areas controlled by al-Shabaab because he would be seen as
westernised and therefore anti-Islamic. He had arrived in the United
Kingdom as a young man and had spent his entire adult life there. He
wore an earring, which might lead to the perception that he was gay,
he spoke little or no Somali and he had a thoroughly “London”
accent. Moreover, if it was discovered that he had been a drug addict
or thief then he would be liable to double amputations or being
publicly flogged or killed.
Even
though he was from a majority clan, the applicant would be unable to
obtain protection as clan structures were breaking down and in any
case he no longer had any links to his clan. In addition, it was
likely that he would be conscripted to fight for al-Shabaab.
The
Government submitted that as the second applicant was a member of the
Isaaq clan it was likely that, if returned to Mogadishu, he would be
able to make contact with, and receive assistance from, other members
of his clan. Although it was not clear whether the system of clan
protection was as strong in Mogadishu as it had been traditionally,
it was still a factor which could reduce further any potential risks
to the second applicant arising from the general security situation.
Moreover,
the Government submitted that even if the second applicant would face
a real risk of ill-treatment contrary to Article 3 of the Convention
if returned to Mogadishu, he was unlikely to face a similar level of
risk if he were to be returned to Hargeisa, the place of his birth.
In this regard, the Government noted that the Operational Guidance
Note of July 2010 indicated that people could travel by air
between Mogadishu and Hargeisa.
β. The Court’s assessment
In
light of the Court’s findings at paragraph 249 above, it
considers that the second applicant would be at real risk of
ill-treatment if he were to remain in the city of Mogadishu. Although
it was accepted that he was a member of the majority Isaaq clan, the
Court does not consider this to be evidence of sufficiently powerful
connections which could protect him in Mogadishu.
It
does not consider that he would be able to relocate safely within
southern and central Somalia. There is no evidence to suggest that he
has any close family connections in the region and, in any case, he
arrived in the United Kingdom in 1988, when he was nineteen years
old. He has therefore spent the last 22 years in the United Kingdom
and, like the first applicant, he has no experience of living under
al-Shabaab’s repressive regime. Consequently, the Court
considers that he would be at real risk of Article 3 ill-treatment
were he to seek refuge in an area under al-Shabaab’s control.
Likewise, there would be a real risk he would be subjected to Article
3
ill-treatment if he were to seek refuge either in the Afgooye
Corridor or in the Dadaab camps.
The
Court recalls, however, that the second applicant was born in
Somaliland and has accepted that he is a member of the Isaaq clan.
The country information indicates that persons who originate
from Somaliland and/or have strong clan connections to the region,
such as members of the Isaaq clan, would be permitted to return there
(see paragraphs 79 and 103, above). Nevertheless, if the second
applicant could be admitted to Somaliland, it is not clear to the
Court why he was issued with removal directions to Mogadishu rather
than Hargeisa, where those originating from Somaliland have in the
past been directly returned. The fact that they have chosen not to do
so appears to contradict their assertion that he would be admitted
there.
Accordingly,
the Court is not satisfied that the second applicant could travel to
Hargeisa, gain admittance and settle there. It therefore concludes
that the removal of the second applicant to Mogadishu would also
violate Article 3 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
314. The
applicants made no claim in respect of pecuniary and
non-pecuniary
damage.
B. Costs and expenses
The
first and second applicants initially claimed GBP 14,539.99 and GBP
4074.44 respectively for the costs and expenses incurred before the
Court. However, both claims were submitted to the Court out of time.
The applicants subsequently jointly claimed GBP 4545 in respect of
the supplementary observations submitted to the Court in October
2010.
The
Government submitted that the first applicant’s claim for
GBP 14,539.99 was excessive, even allowing for the fact that the
case was a lead judgment on returns to Mogadishu.
In
the circumstances of the present case, the Court has decided to
exercise its discretion to admit the applicants’ claims for
just satisfaction.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the first applicant the sum of EUR
14,500 for the proceedings before the Court and the second applicant
the sum of EUR 7,500 for the proceedings before the Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
III. RULE 39 OF THE RULES OF COURT
The
Court recalls that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
It
considers that the indication made to the Government under Rule 39
of the Rules of Court (see above § 4) must continue in force
until the present judgment becomes final or until the Panel of the
Grand Chamber of the Court accepts any request by one or both of the
parties to refer the case to the Grand Chamber under Article 43 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to join the applications;
Declares the applications under Article 3 of the
Convention admissible;
Holds that the applicants’ removal to
Somalia would violate Article 3 of the Convention;
Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 14,500 (fourteen thousand five hundred euros), plus any tax that
may be chargeable, in respect of costs and expenses, to be converted
into British pounds at the rate applicable at the date of settlement;
(b)
that the respondent State is to pay the second applicant, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 7,500 (seven thousand five hundred euros), plus any tax that may
be chargeable, in respect of costs and expenses, to be converted into
British pounds at the rate applicable at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 28 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki Deputy Registrar President
Map provided by the Cartographic Section of the
Departments of Peacekeeping Operations and Field Support in UNHQ
