NM and Others (Lone women Ashraf) Somalia CG  UKIAT 00076
Date of hearing: 14 February 2005
Date Determination notified: 31 March 2005
|Secretary of State for the Home Department
|NM and Others||RESPONDENT|
"At paragraph 4.35 it is stated that the small Asharaf [sic] group in Gedo remained aloof from the clan fighting and enjoys a secure position . According to para 5.3, most Somalis ensure their personal safety by residing in the 'home areas' of their clan and this may involve a form of internal displacement for some people in Mogadishu who have had to move to traditional clan areas elsewhere. The appellant referred to living with relatives for a while in Afgoye, and so presumably there are other Ashraf clan members in that rural area, where the appellant could have gone if she was afraid, rather than seeking international protection."
"I do not consider that the appellant has a Convention reason and so she has not been persecuted for any such reasons. As a result, she does not come under the protecting umbrella of the Convention. She is the victim, like so many of her countrymen and women of a civil war as discussed in the decision in Adan. As such she is just one of many people who have suffered but who has not been individually targeted due to her ethnic origin. On return, she will be no different from anyone else. There is nothing to single out her circumstances. Given that the Ashraf have in particular been mentioned at 4.35 as enjoying a secure position, I cannot see what difficulty the appellant will have on return. She will have the protection of a clan, which in itself appears to be protected."
"I have also examined article 3 on a different basis: it was submitted that the Appellant would be at real risk as a female if returned, particularly in the context of uncertain security. She was affected by a differential impact. I do not find that general security and humanitarian conditions of themselves give rise to an article 3 claim. However, there must be real concerns about the return of a young single woman. However, it appears that she still has close family members in the country, her mother and siblings, which is a factor which in my judgement militates against the Appellant herself being risk [sic]. She would not be at real risk of treatment which would breach the high threshold for article 2 and 3.
43. I do not find that the Appellant would suffer an interference in her protected human rights because of the general security or humanitarian situation in Somalia nor because of her gender."
"I have considered the two most recent  reports from UNHCR and from the Joint Report of 7th January. I have considered also the other background evidence here in the CIPU at 6.146 to 6.150. In considering those three recent Reports, the CIPU, the up to date Minority Report and the UNHCR Report, it seems to me that to return the appellant to Somalia as a single young female returning from a European country would not render her subject to a well founded fear of persecution for a Convention reason but would, in my opinion, subject her to a real risk of treatment contrary to the terms of Art 3 of the European Convention of Human Rights. I am satisfied that there is a real risk of treatment contrary to Art 3".
"We do not feel on the evidence that the return of the appellant would expose her to a real risk of inhuman or degrading treatment. While there are cases of rape in Mogadishu, it is not established that the appellant, admittedly as a single woman, would herself be at risk given that she is a member of a sub clan of a majority clan".
"13. During the course of the hearing, Mr Blundell volunteered to seek information from the country expert within the Home Office as to the viability of travel from Mogadishu to Gedo. Having made such enquiries as he could, he informed us that there have been returns to Mogadishu. The journey from Mogadishu to Gedo is approximately 150 miles but there is no public transport system and, as the CIPU notes, the journey is likely to be interrupted by militia checkpoints at which extortion demands will be made. Realistically, the appellant will have to be provided with money in order to enable her to complete the journey and is likely to be subjected, at least, to extortion demands by militiamen. As Mr Cox pointed out, the very fact that the appellant will have money will render her liable to extortion. Whilst we accept that this may not be in quite the same category as a person being required to fell across battle-lines in order to seek the safety of his or her own community, it appears to us that the journey is likely to be perilous. She will be accompanied by a young child. Mr Blundell accepted that it would not be particularly easy.
14. The conclusion that we have reached is that, whilst the background material establishes that the area around Gedo will provide adequate safety for this appellant, even as a single woman, there is at present no practical means enabling her to complete her journey there in adequate safety. In our judgment, under both Conventions, the provision of adequate security is essentially a practical affair. In reaching this conclusion we have avoided deciding the issue on the basis of who has the burden of establishing it. It is, of course, for the appellant to establish her claim. If the evidence suggests there are areas within the country where a particular appellant is able to find adequate protection, the assumption will be that there are means of travel to enable her to reach that destination. If, as in the case of Somalia, there is evidence that there are significant difficulties in completing the journey, the information may be sufficient to enable the appellant to discharge the burden placed upon her. Nevertheless, it will sometimes be the case that the Secretary of State has access to information that is not available to an appellant and, in such cases, it may be reasonable for the Secretary of State to provide it. In so doing, we are not suggesting that the burden shifts to the Secretary of State although the issue was not explored before us.
15. The consequences of this decision are that the appellant has succeeded in establishing that there is an insufficiency of protection for her were she to return to Somalia and that her claim under the Refugee Convention is made out. Her upgrade appeal is allowed."
Risk to women returning alone from the United Kingdom
"Lives continue to be threatened by violence, crime, clan feuds, lack of justice as well as poverty. Furthermore, humanitarian agencies have real problems gaining access to many areas. Militia loyal to different strongmen succeed one another in a perpetual move to establish a sustainable control of certain areas. There is a constant fear of abrupt change in clan balance shaking territorial power bases. This often leads to conflicts between clans and factions. Mines have been laid in many areas as part of current conflicts to either mark territorial control or prevent the mistreatment of people. Moreover, the lack of any effective governing administration may render it impossible for countries with rejected Somali asylum seekers to embark on any comprehensive and co-ordinated dialogue aiming at removing such cases. Consequently, UNHCR considers that persons originating from southern Somalia are in need of international protection and objects to any involuntary return of rejected asylum seekers to the area south of the town of Galkayo."
"Gender-based violence is prevalent, including rape, female genital mutilation and domestic violence. The cultural attitudes of traditional elders and law enforcement officials routinely result in restrictions on women's access to justice, denial of their right to due process and their inhumane treatment in detention .
Somali women who unsuccessfully but credibly based their claims on issues relating to gender-based persecution should not be subject to involuntary return to any part of Somalia (para 5.2 )."
"Wolken [UNHCR Somalia representative] explained that returnees are at risk of robbery, extortion at roadblocks, and attacks by militias in the areas to which they return. She added that the UNHCR is unable to monitor the progress of persons following their return as UNHCR only has a field office in Mogadishu. However, in areas where UNHCR has access some monitoring might be possible".
"Any Somali who returns to Somalia from abroad would be perceived as having some resources (cash or other). This will be the case both for persons returned by force and for Somalis with residence abroad who visit Somalia independently. As a result of this perception among Somalis within Somalia, the report states, a person in this category will be at a greater risk of being robbed, extorted or attacked by militia than persons permanently residing in Somalia".
"Regarding the situation of vulnerable groups in Somalia the CAP states 'In both the CAP Workshop for 2003 (August 2002) and 2004 (August 2003), as well as in numerous other reports, aid actors in Somalia have reaffirmed the three most vulnerable groups in Somalia to be IDPs, returnees and minorities. While many other categories of vulnerability have been identified, these groups, which include women and children, qualify as the "most vulnerable of the vulnerable, 'primarily due to having suffered from: 1) the loss of assets through exposure to major shock, whether it be economic, climactic or conflict-related; 2) having little or no access to protection from clan affiliations, and 3) being exposed to multiple vulnerabilities or risks'".
"According to CAP, gender-based violence is also prevalent, including rape, female genital mutilation and domestic violence. "
"Wolken indicated that young Somalis returning from abroad (particularly western countries, but also neighbouring countries such as Kenya) are vulnerable to physical abuse, and are viewed with suspicion by their relatives and local communities. She referred specifically to young females who are at risk of rape and FGM. It was suggested that thousands of young girls are at risk of being outcast in this way."
"Somalians returning to Somalia meet with no hindrance from the local authorities on arrival. However, in the relatively unsafe areas, passengers are sometimes waylaid en route from the airport by militias or criminals who steal all their belongings, often resorting to extreme violence. Somalian emigrants who travel to relatively unsafe areas also run a greater risk of being kidnapped, since criminals expect them to have fairly wealthy relatives abroad."
"Since the outbreak of the civil war Somalia has had a large number of single women. These are women who have either been divorced (or abandoned) or whose husband has died or left to seek work elsewhere. As a consequence of the civil war the number of female-headed families has risen sharply. For example, a recent survey by UNICEF shows that the percentage of such families in Galkayo rose from 10% to 54% between 1990 and 2004. This percentage is substantially higher in southern Somalia. As explained below, single women can generally rely on their family and clan for protection. However, in socio-economic terms female-headed households are very vulnerable. The children of such families are often malnourished.
"Rape occurs fairly regularly in Galkayo, whereas it was virtually non-existent before the civil war broke out. Women of minority groups or displaced women tend to be the victims, particularly since the perpetrators then has much less to fear from any claims for compensation from the victim's family and in southern Somalia, where an entire generation has grown up during a civil war, some of the young men have never learned the traditional standards and values. Mistreatment and rape of women therefore occur regularly in this region, mainly committed by militia members."
"As reflected in the [joint mission 2004 report] UN sources suggested that the fluid security situation and general trend in extra-judicial killings in the southern and central regions remained unchanged during 2003, a trend that has been constant since 1999. The source explained that this situation was caused by the time that had elapsed and because the culture of violence and weapons, and disrespect for life have become more prevalent in Somalia. It was added that the security situation in Somalia is being continuously monitored and that the overall level of violence in 2003 was high. Incidents of kidnappings and looting have increased, as many people looked to increase their resource base. The weaker clans and the minority groups were now worse off. This increase in violence and the deterioration of security in Somalia has affected not only Somali civilians, but also local UN staff".
"Most vulnerable have been women who have been internally displaced within Somalia, who have lacked the protection of powerful clan structures, and those from minority clans and ethnic minorities."
" A new provisional president has been elected for Somalia, but the election has taken place in Kenya where the 'peace conference' which appointed him has been meeting for two years since Somalia was judged to be too hazardous for these negotiations. The person chosen belongs to the same clan-family (Darod) as the previous dictator Mohamed Siyad Barre, who was overthrown in 1990/91 and his appointment has already been opposed by most of the warlords in Mogadishu who belong to the Hawiye clan-family. We are thus entering on a new period of uncertainty and turmoil in Somalia generally, and in Mogadishu particularly, where anything could happen and there has already been an upsurge of street violence with assassinations and kidnapping.
The people most endangered in these circumstances are always members of the minority groups such as the Ashraf, and refugees who return from this country are always particularly attractive targets since they are assumed to be (relatively) wealthy. In these circumstances a forcibly returned unprotected woman with, or without, small children is always especially vulnerable to robbery and sexual attack. The situation of homeless people worsened in 2003 when, in the course of 'anti-terrorist' measures, the US State Department froze the Middle Eastern accounts of the Saudi NGO Al-Haramayn which had opened centres for homeless people and orphans in Mogadishu. Over three thousands 'orphans' were thrown onto the streets.
You also ask about the IDP camps round Mogadishu. These have a very bad reputation as offering only irregular support and being extremely insecure. The most recent intergovernmental report on human rights (dated 2004) on the camp situation is not reassuring. This reports that 'there is no control in these camps and militia members enter the camps to rape and kill with impunity. The local community steal and loot any assistance that is given to the IDPs (Human Rights and security in central and southern Somalia: Joint Danish, Finnish, Norwegian and British fact-finding mission to Nairobi Kenya, March 2004, p 42)."
In its position paper (Position on the Return of Rejected Seekers-seekers to Somalia, Geneva, January 2004, p 9), 'UNHCR considers that persons originating from southern Somalia are in need of international protection and objects to any involuntary return of rejected asylum seekers to the area south of Galkayo. Mogadishu represents the worse case of this general southern Somali situation, and Amnesty International has recently reported cases of returned asylum-seekers who have actually been murdered in the course of street robberies in Mogadishu'."
"The general pattern of human settlements in many parts of Africa, including Somalia, is often characterised by common ethnic, tribal, religious and or/cultural factors, which enable access to land, resources and protection from members of the community. Consequently, this commonality appears to be the necessary condition to live in safety. In such situations, it would not be reasonable to expect someone to take up residence in an area or community where persons with a different ethnic, tribal, religious and/or cultural background are settled, or where they would otherwise be considered as aliens.
The only conceivable alternative could be to move to the slums of a big city, where internal migrants from the countryside lead a precarious existence, often in appalling living conditions. Persons with a rural background may be rendered destitute there and thus be subjected to undue hardship. Therefore, it would be unreasonable to expect a person to move to an areas (sic) in his or her own country other than one where he or she has ethnic, tribal, religious and /or cultural ties [emphasis added]."
MR JUSTICE OUSELEY
In addition to the judgment of the House of Lords  UKHL 15 in Adan  1 WLR 1107, the following Tribunal cases were cited: SA (Persecution-Eyle-Weak) Somalia CG  UKIAT 06665, FB (Risk-Class-Midgan) Somalia CG  UKIAT 06753, AH (Midgan-Disabled Woman-Relocation-Mogadishu) Somalia CG  UKIAT 07343, NG (Risk-Female Eyle-Internal Displacement) Somalia CG  UKIAT 00011(previously known as G (Somalia), AJH (Minority group-Swahili speakers) Somalia CG  UKIAT 00094, AW (Article 3-Risk-General Situation) Somalia CG  UKIAT 00111, AH (Town Tunni regarded as Bravanese) Somalia  UKIAT 00144, SH (Return-Gedo-Burden of Proof) Somalia  UKIAT 00164, MN (Town Tunni regarded as Bravanese) Somalia CG  UKIAT 00224, FG (Risk-Single Female-Clan Member-Article 3) CG Somalia  UKIAT 00175, AM (Use of Sharif Name) Somalia  UKIAT 00110 and KS (Minority Clans-Bajuni-ability to speak Kibajuni) Somalia CG  UKIAT 00271.
List of background materials placed before the Tribunal
CIPU assessments and reports for April 2002, October 2002, April 2003, April 2004 and October 2004.
Home Office Operational Guidance Notes: Somalia V6 May 2004.
US Country Report on Human Rights Practices 2003 (February 2004).
UNHCR Position on the Return of Rejected Asylum-Seekers to Somalia, January 2004.
UNHCR London Office letter of 2 November 2004 headed, "Conditions on return, IDP camps around Mogadishu, Somalia".
The joint British, Danish and Dutch fact-finding Mission (17-24 September 2000).
The joint British and Danish fact-finding mission to Nairobi (Kenya) and Baidoa and Belet Wayne, Somalia, "Report on political, security and human rights developments in southern and central Somalia, including South West State of Somalia and Puntland State of Somalia", 20 May to 1 June 2002.
The joint Danish, Finnish, Norwegian and British Fact finding mission to Nairobi, Kenya 7-12 January 2004 published 17 March 2004 entitled "Human Rights and Security in Central and Southern Somalia".
Immigration and Refugee Board of Canada, "Somalia: The situation of minority groups and their members", 9 August 2004.
Amnesty International, UK, "Get it right: how Home Office decision-making fails refugees (Report excerpt: Somalia refusal letter and Amnesty International comment", 9 February 2004).
Global IDP Project (Norwegian Refugee Council), "Internally displaced Somalis face uncertain future after years of state collapse", 24 November 2004.
Netherlands Ministry of Foreign Affairs, "General country report Somalia", 22 Nov 2004.
Expert report from Professor IM Lewis dated 24 October 2004.
Expert report from Dr Virginia Luling dated 25 January 2004 entitled "Opinion on the Return of Unaccompanied Women to Mogadishu".
There were also some miscellaneous other items notably an unidentified newspaper article dated 29 July 2004 by Richard Walker and Tim Fisher, entitled, "Killing Rekindles asylum row" and a BBC News report dated Mon 24 January 2005.