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You are here: BAILII >> Databases >> Upper Tribunal (Immigration and Asylum Chamber) >> AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) (28 November 2011) URL: http://www.bailii.org/uk/cases/UKUT/IAC/2011/00445_ukut_iac_2011_amm_ors_somalia_cg.html Cite as: [2011] UKUT 445 (IAC), [2011] UKUT 00445 (IAC) |
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Upper Tribunal
(Immigration and Asylum Chamber)
AMM
and others (conflict; humanitarian crisis; returnees; FGM)
Somalia
CG [2011] UKUT 00445 (IAC)
THE IMMIGRATION ACTS
Heard at Field House |
Determination Promulgated |
On 13 to 21 June and 15 July 2011 |
|
|
………………………………… |
Before
UPPER TRIBUNAL JUDGE LATTER
UPPER TRIBUNAL JUDGE P R LANE
UPPER TRIBUNAL JUDGE KEKIĆ
Between
MW
ZF
FM
AF
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
Intervening
Representation:
For Appellants AMM
: Ronan
Toal, instructed by South Manchester Law Centre
For Appellant MW: Harriet Short, instructed by Avon & Bristol Community Law Centre
For Appellant ZF: Mark Schwenk, instructed by Parker Rhodes Hickmotts, Solicitors
For Appellant FM: Mark Symes, instructed by Wilson Solicitors LLP
For Appellant AF: Ronan Toal, instructed by Wilson Solicitors LLP
For the Respondent: Tim Eicke QC and Christopher Staker, instructed by the Treasury Solicitor
For the UNHCR: Tom Hickman, instructed by Baker & McKenzie LLP
Law
1) Whilst section 2 of the Human Rights Act 1998 and its associated case law requires United Kingdom tribunals in general to give effect to the jurisprudence of the European Court of Human Rights, including that Court’s guidance on how to approach evidence in international protection cases, the weighing of evidence and the drawing of conclusions as to the relative weight to be placed on items of evidence adduced before a United Kingdom tribunal are ultimately matters for that tribunal. Whilst the factual finding the Strasbourg Court has made as a result of applying its own guidance is something to which the domestic tribunal must have regard, pursuant to section 2, it is not bound to reach the same finding.
2) There is nothing
jurisprudentially problematic with the Strasbourg Court’s judgment in Sufi
& Elmi v the United Kingdom [2011] ECHR 1045, as regards Article 3 of
the ECHR. The Court’s finding, that the predominant cause of the humanitarian
crisis in southern and central Somalia
was due to the current warring parties,
meant that the high threshold (identified, inter alia, in N v United Kingdom
[2008] ECHR 453) for finding an Article 3 violation in the case of naturally
occurring phenomena did not need to be met.
3) That high threshold is, however, still capable of being crossed in cases of sufficient exceptionality. In deciding what constitutes an exceptional case, regard must be had to all the factors, including the actions of the parties to a conflict, albeit that those actions are not the predominant cause of the humanitarian crisis.
4) Despite the suggestion in the judgment in Sufi & Elmi that there is no difference in the scope of, on the one hand, Article 3 of the ECHR (and, thus, Article 15(b) of the Qualification Directive) and, on the other, Article 15(c) of the Directive, the binding Luxembourg case law of Elgafaji [2009] EUECJ C-465/07 (as well as the binding domestic authority of QD (Iraq) [2009] EWCA Civ 620) makes it plain that Article 15(c) can be satisfied without there being such a level of risk as is required for Article 3 in cases of generalised violence (having regard to the high threshold identified in NA v United Kingdom [2008] ECHR 616). The difference appears to involve the fact that, as the CJEU found at [33] of Elgafaji, Article 15(c) covers a “more general risk of harm” than does Article 3 of the ECHR; that Article 15(c) includes types of harm that are less severe than those encompassed by Article 3; and that the language indicating a requirement of exceptionality is invoked for different purposes in NA v United Kingdom and Elgafaji respectively.
5) Article 10 of the Qualification Directive requires the holding of some sort of belief, comprising a coherent and genuinely held system of values, whether these be theistic, non-theistic or atheistic, and is not satisfied in the case of a person who holds no such belief. Social restrictions, such as bans on watching football or television, do not comprise an interference with the right to religion, in the case of a person whose religious etc beliefs do not require him or her to participate in those activities. It is immaterial that a person may be permitted, according to those beliefs, to participate in the activities concerned.
6) Even where the motivation for a law is religious, the religious aspect will not, without more, lay the basis of a claim to international protection in relation to anyone who might fall foul of that law. However, the more such religiously motivated laws interfere with someone’s ability to hold and practise their religious or other beliefs, the more intense will be the scrutiny.
7) The necessary religious element to satisfy Article 1(A) of the Refugee Convention is not satisfied solely by reference to the persecutor; but that element can be satisfied if the persecutor ascribes to the victim a perceived religious opinion.
8) There is no general legal principle that, in determining a person’s entitlement to international protection, the Tribunal must leave out of account any possibility of that person’s carrying out an act in the country of proposed return, which – if carried out in the United Kingdom – would constitute a criminal offence. A genuine conscientious objection to complying with unjust laws or demands may, however, provide an entitlement to such protection.
9) On the assumption that Al-Shabab’s
likely behaviour towards those who transgress its rules is as found in this
determination, the position is as “extreme” as the factual basis in RT (Zimbabwe) [2010] EWCA Civ 1285. In the light of RT, a person from an Al-Shabab
area who can show they do not genuinely adhere to Al-Shabab’s ethos will have a
good claim to Refugee Convention protection, once outside Somalia
(subject to
internal relocation and exclusion clause issues), regardless of whether the
person could and would “play the game”, by adhering to Al-Shabab’s rules. As
can be seen from a comparison with Sufi & Elmi, the effect of RT
is, accordingly, to take the Refugee Convention beyond the comparable ambit of
Article 3 ECHR protection.
10) There is no legal burden on the Secretary of State to prove that there is a part of the country of nationality etc of an appellant, who has established a well-founded fear in their home area, to which the appellant could reasonably be expected to go and live. The appellant bears the legal burden of proving entitlement to international protection; but what that entails will very much depend upon the circumstances of the particular case. In practice, the issue of internal relocation needs to be raised by the Secretary of State in the letter of refusal or (subject to procedural fairness) during the appellate proceedings.
11) It will then be for the appellant to make good an assertion that, notwithstanding the general conditions in the proposed place of relocation, it would not be reasonable to relocate there. In an Article 3 claim, a similar position pertains, in that, although the test of reasonableness/undue harshness does not formally apply, unduly harsh living conditions etc – albeit not themselves amounting to a breach of Article 3 – may nevertheless be reasonably likely to lead to a person returning to their home area, where such a breach is reasonably likely.
12) An appellant who pursues their appeal on asylum and humanitarian protection grounds, following a grant of leave, is entitled to have their appeal decided on the hypothetical basis (if the facts so demonstrate) that family members would be reasonably likely to return with the appellant and that potential harm to those family members would cause the appellant to suffer persecution or Article 15(b) harm.
13) A person is not entitled to protection under the Refugee Convention, the Qualification Directive or Article 3 of the ECHR, on the basis of a risk of harm to another person, if that harm would be willingly inflicted by the person seeking such protection.
14) Article 8(1) of the Qualification Directive provides that Member States may determine that a person is not in need of international protection “if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. Article 8(3) states that Article 8(1) applies “notwithstanding technical obstacles to return to the country of origin”. Although the Court of Appeal in HH & Others [2010] EWCA Civ 426 found that Article 8 was “to do principally with internal relocation”, there is nothing in that judgment or in the Qualification Directive that demonstrates the Article is so confined, and it would be illogical for it to be so. Accordingly, difficulties in securing documentation to effect a return to a person’s home area may not entitle that person to international protection, whether or not there are real risks to that person in some other area of the country concerned.
15) In assessing the effect of an
appellant’s lies (whether to the Secretary of State or a judicial fact-finder),
it is unnecessary to construct a prescribed set of steps from the judgments of
the Supreme Court in MA (Somalia
) [2010] UKSC 49, particularly if they
might lead to a “mechanistic” rather than a holistic approach. The significance
or “negative pull” of the lie will possibly depend not only on the strength of
the background evidence but on whether the lie – looked at in its own terms –
is about an issue that is central to the disposition of the appeal. Where a
person tells lies about issues which that person thinks are important to their
claim but which, because of the passage of time or otherwise, are not, it is open
to the Tribunal, given the earlier lies, to approach with caution the person’s
evidence regarding matters that are central to the current claim.
Country guidance
Mogadishu
1) Despite the withdrawal in early August 2011 of Al-Shabab conventional forces from at least most of Mogadishu, there remains in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad. Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. The significance of this category should not, however, be overstated and, in particular, is not automatically to be assumed to exist, merely because a person has told lies.
2) The armed
conflict in Mogadishu does not, however, pose a real risk of Article 3 harm in respect
of any person in that city, regardless of circumstances. The humanitarian
crisis in southern and central Somalia
has led to a declaration of famine in
IDP camps in Mogadishu; but a returnee from the United Kingdom who is fit for
work or has family connections may be able to avoid having to live in such a
camp. A returnee may, nevertheless, face a real risk of Article 3 harm, by
reason of his or her vulnerability.
3) Except as regards the issue of female genital mutilation (FGM), it is unlikely that a proposed return to Mogadishu at the present time will raise Refugee Convention issues.
Southern
and central Somalia
, outside Mogadishu
4) Outside
Mogadishu, the fighting in southern and central Somalia
is both sporadic and
localised and is not such as to place every civilian in that part of the
country at real risk of Article 15(c) harm. In individual cases, it will be
necessary to establish where a person comes from and what the background
information says is the present position in that place. If fighting is going
on, that will have to be taken into account in deciding whether Article 15(c)
is applicable. There is, likewise, no generalised current risk of Article 3
harm as a result of armed conflict.
5) In general, a
returnee with no recent experience of living in Somalia
will be at real risk of
being subjected to treatment proscribed by Article 3 in an Al-Shabab controlled
area. “No recent experience” means that the person concerned left
Somalia
before the rise of Al-Shabab in 2008. Even if a person has such experience,
however, he or she will still be returning from the United Kingdom, with all
that is likely to entail, so far as Al-Shabab perceptions are concerned, but he
or she will be less likely to be readily identifiable as a returnee. Even if he
or she were to be so identified, the evidence may point to the person having
struck up some form of accommodation with Al-Shabab, whilst living under their
rule. On the other hand, although having family in the Al-Shabab area of return
may alleviate the risk, the rotating nature of Al-Shabab leadership and the
fact that punishments are meted out in apparent disregard of local
sensibilities mean that, in general, it cannot be said that the presence of
family is likely to mean the risk ceases to be a real one.
6) Al-Shabab’s reasons for imposing its requirements and restrictions, such as regarding manner of dress and spending of leisure time, are religious and those who transgress are regarded as demonstrating that they remain in a state of kufr (apostasy). The same is true of those returnees who are identified as coming from the West. Accordingly, those at real risk of such Article 3 ill-treatment from Al-Shabab will in general be refugees, since the persecutory harm is likely to be inflicted on the basis of imputed religious opinion.
7) Although those with recent experience of living under Al-Shabab may be able to “play the game”, in the sense of conforming with Al-Shabab’s requirements and avoiding suspicion of apostasy, the extreme nature of the consequences facing anyone who might wish to refuse to conform (despite an ability to do so) is such as to attract the principle in RT (Zimbabwe). The result is that such people will also in general be at real risk of persecution by Al-Shabab for a Refugee Convention reason.
8) The same considerations apply to those who are reasonably likely to have to pass through Al-Shabab areas.
9) For someone at
real risk in a home area in southern or central Somalia
, an internal relocation
alternative to Mogadishu is in general unlikely to be available, given the risk
of indiscriminate violence in the city, together with the present humanitarian
situation. Relocation to an IDP camp in the Afgoye Corridor will, as a general
matter, likewise be unreasonable, unless there is evidence that the person
concerned would be able to achieve the lifestyle of those better-off
inhabitants of the Afgoye Corridor settlements.
10) Internal relocation to an area controlled by Al-Shabab is not feasible for a person who has had no history of living under Al-Shabab in that area (and is in general unlikely to be a reasonable proposition for someone who has had such a history - see above). Internal relocation to an area not controlled by Al-Shabab is in general unlikely to be an option, if the place of proposed relocation is stricken by famine or near famine.
11) Within the context of these findings, family and/or clan connections may have an important part to play in determining the reasonableness of a proposed place of relocation. The importance of these connections is likely to grow, as the nature of the present humanitarian crisis diminishes and if Al-Shabab continues to lose territory.
12) Travel by land
across southern and central Somalia
to a home area or proposed place of
relocation is an issue that falls to be addressed in the course of determining
claims to international protection. Such travel may well, in general, pose real
risks of serious harm, not only from Al-Shabab checkpoints but also as a result
of the present famine conditions. Women travelling without male friends or
relatives are in general likely to face a real risk of sexual violence.
13) An issue that
may have implications for future Somali appeals is the availability of air
travel within Somalia
(including to Somaliland). Flying into Mogadishu International Airport is sufficiently safe. There is no evidence to indicate a real
risk to commercial aircraft flying to other airports in
Somalia
.
Somaliland and Puntland
14) The present appeals were not designed to be vehicles for giving country guidance on the position within Somaliland or Puntland. There is no evidential basis for departing from the conclusion in NM and others, that Somaliland and Puntland in general only accept back persons who were former residents of those regions and were members of locally based clans or sub clans. In the context of Somali immigration to the United Kingdom, there is a close connection with Somaliland.
15) A person from Somaliland will not, in general, be able without real risk of serious harm to travel overland from Mogadishu International Airport to a place where he or she might be able to obtain an unofficial travel document for the purposes of gaining entry to Somaliland, and then by land to Somaliland. This is particularly the case if the person is female. A proposed return by air to Hargeisa, Somaliland (whether or not via Mogadishu International Airport) will in general involve no such risks.
Female genital mutilation
16) The incidence
of FGM in Somalia
is universally agreed to be over 90%. The predominant type of
FGM is the “pharaonic”, categorised by the World Health Organisation as Type
III. The societal requirement for any girl or woman to undergo FGM is strong.
In general, an uncircumcised, unmarried Somali woman, up to the age of 39, will
be at real risk of suffering FGM.
17) The risk will be greatest in cases where both parents are in favour of FGM. Where both are opposed, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand the strong societal pressures. Unless the parents are from a socio-economic background that is likely to distance them from mainstream social attitudes, or there is some other particular feature of their case, the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others (particularly relatives) will at some point inflict FGM on her.
This determination is arranged as follows:
Paragraphs
A. PRELIMINARY 1 - 4
B. THE FIVE APPELLANTS 5 – 26
Appellant MW 9 – 14
Appellant ZF 15 – 17
Appellant FM 18 – 23
Appellant AF 24 – 26
C. SOMALI COUNTRY GUIDANCE CASES 27 – 43
NM and Others (lone women - Ashraf 28 – 34
HH (Mogadishu: armed conflict: risk) 35
AM & AM (Armed conflict: risk categories) 36 – 43
D. SCOPE OF THE PRESENT APPEALS 44 – 54
AND COUNTRY GUIDANCE
E. THE ECtHR JUDGMENT IN SUFI & ELMI 55 – 133
AND ITS BEARING ON THE PRESENT APPEALS
The applicants’ circumstances 57 – 63
Case law 70 – 72
Relevant country information 73 – 81
The ECtHR’s assessment 82 – 96
Mogadishu 82 - 84
Southern and
central Somalia
85 – 96
(a) The internal relocation alternative 85 – 86
(b) The risk in transit or upon settling 87 – 92
elsewhere in
southern or central Somalia
(c) Humanitarian conditions in refugee 93 – 96
and IDP camps
The significance of Sufi & Elmi to the 97 – 133
Present appeals and country guidance
(a) Formal status 97 – 123
(b) Article 3 and humanitarian conditions 124 – 133
F. THE UNITED NATIONS HIGH 134 – 156
COMMISSIONER FOR REFUGEES
Submissions and evidence 134 – 152
The Tribunal’s assessment 153 – 156
G. UKBA’S SOMALIA
– REPORT OF 157 – 168
FACT-FINDING MISSION TO NAIROBI
(8-15 SEPTEMBER 2010) AND WILSON
SOLICITORS’ EVIDENCE FROM NAIROBI
(14 – 21 MAY 2011)
H. FURTHER LEGAL ISSUES 169 – 240
(1) Al-Shabab and religion 170 – 199
The Tribunal’s assessment 190 – 199
(2) No requirement to act illegally? 200 – 206
(3) “Playing the game” – RT (Zimbabwe) 207 – 217
(4) Internal relocation and the burden 218 – 227
of proof
(5) Legal issues arising from appellant 228 - 240
MW’s appeal
(a) Effect of Beoku-Betts 228 – 237
(b) Refugee protection for the persecutor? 238 – 240
I. ASSESSMENT OF THE GENERAL EVIDENCE 241 – 587
Introduction 241 – 249
(1) Mogadishu 250 – 371
Evidence and submissions 250 - 326
The Tribunal’s findings 327 - 371
(a) Article 15(c) 328 – 363
(b) Article 3 364 – 369
(c) Refugee Convention 370 – 371
(2) Southern and central 372 - 497
Somalia
, outside Mogadishu
Evidence and submissions 372 – 447
The Tribunal’s findings 448 - 497
(a) Article 15(c) 448 – 450
(b) Article 3 451 – 490
- Armed conflict 452
- Living under Al-Shabab 453 – 473
- Humanitarian situation 474 – 490
(c) Refugee Convention 491 – 497
(3) Internal relocation 498 – 507
(a) To Mogadishu 499 – 500
(b) To an IDP camp in the Afgoye 501
Corridor
(c) To an area controlled by Al-Shabab 502
(d) To an area not controlled by Al-Shabab 503 – 507
(4) Travelling home or to another place of 508 - 524
safety
(5) Somaliland and Puntland 525 – 546
(6) Female genital mutilation 547 – 567
J. ASSESSING THE NEGATIVE PULL 568 - 578
OF LIES: MA
(SOMALIA
)
K. SUMMARY OF LEGAL FINDINGS 579 - 593
L. COUNTRY
GUIDANCE ON SOMALIA
594 - 610
Mogadishu 594 – 596
Southern and
central Somalia
, outside Mogadishu 597 – 606
Somaliland and Puntland 607 – 608
Female genital mutilation 609 – 610
M. RE-MAKING THE DECISIONS IN THE 611 - 665
APPEALS
Appellant MW 621 – 636
Appellant ZF 637 – 644
Appellant FM 645 – 658
Appellant AF 659 – 665
--------------------------------
APPENDIX 1 – Summary of oral evidence
APPENDIX 2 – Background evidence
DETERMINATION AND REASONS
PART A
PRELIMINARY
1. In this
determination the Tribunal gives country guidance on Somalia
in the light of
matters arising after the Asylum and Immigration Tribunal gave its guidance on
that country in AM & AM (Armed conflict: risk categories)
Somalia
CG
[2008] UKAIT 00091. We do so also in the light of the recent decision of the
European Court of Human Rights (4th Section) in Sufi & Elmi v
the United Kingdom [2011] ECHR 1045. Although the country guidance touches
on matters concerning northern
Somalia
(that is to say, the semi-autonomous
entity of Puntland and the self-proclaimed but internationally unrecognised
state of Somaliland), it is primarily concerned with the situation pertaining
in central and southern
Somalia
, including Mogadishu. The major issues
concerning current risk on return to central and southern
Somalia
are the armed
conflict taking place between, on the one hand, the Transitional Federal
Government (TFG) and the African Union Mission in
Somalia
(AMISOM) and, on the
other, the militant Islamists known as Al-Shabab; the threat of harm posed by Al-Shabab
and (to a much lesser extent) the TFG to those living in their respective areas
of control; and the humanitarian crisis, amounting in large areas to famine,
occasioned by the most sustained drought in the region for many decades.
2. The Tribunal sat on 13 to 21 June and 15 July 2011. We heard oral evidence from the five appellants, whose appeals are the basis of this determination. We heard oral evidence from the partner of appellant MW and from two expert witnesses, Tony Burns and Laura Hammond. The oral evidence is summarised in Appendix 1. The Tribunal was provided with a very large amount of documentary material, which is listed in Appendix 2. Throughout the determination, certain spellings have been standardised.
4. These appeals have been conspicuously well-argued by Counsel, and the evidence assembled with evident industriousness by those instructing them. We are particularly grateful to the experts who gave oral evidence. As will be apparent, the issues upon which country guidance is necessary are multi-faceted and in several respects raise legal issues, about which the parties made detailed submissions. This has resulted in a very long determination; but, having regard to the observations of the Court of Appeal at [6] and [52] of the judgments in PO (Nigeria) [2011] EWCA Civ 132, we have adopted a structure which sets out the full extent of the country guidance and is generally intended to preclude the determination’s length from adversely affecting the clarity of its exposition.
PART B
THE FIVE APPELLANTS
Appellant AMM
5. Appellant AMM
was
born on 6 January 1977. He comes from Jowhar in southern
Somalia
. Although, as we shall see, a large amount of appellant
AMM
’s story of his experiences has
been legitimately disbelieved by those tasked with considering it, his home
area in
Somalia
is not in dispute. Nor is the fact that his journey to the
United Kingdom has been tortuous – not to say accidental – in that he was
rescued by a Danish merchant ship from a broken-down motorboat, somewhere in
the Mediterranean, and brought to a port in the United Kingdom, where he
claimed asylum, in June 2005. It is evident from the determination of
Immigration Judge Gladstone, who dismissed appellant
AMM
’s appeal against the
respondent’s refusal in 2005 to grant asylum, that the account given by appellant
AMM
of how he came to be on the motorboat was not believed; in particular: the
alleged factors that caused appellant
AMM
to leave
Somalia
and whether and if
so how he had spent time in other countries.
6. Following the
dismissal of his appeal by Immigration Judge Gladstone, appellant AMM
went to
the Republic of Ireland and claimed asylum. He was returned to the United Kingdom by the Irish authorities in February 2006, whereupon he made a further claim
for asylum. Following the refusal of that claim, appellant
AMM
came before
Immigration Judge Glossop, who dismissed the appeal in December 2006. Like the
previous Immigration Judge, Immigration Judge Glossop rejected appellant
AMM
’s
claim to be from a minority clan (the Bantu). Immigration Judge Glossop also
rejected appellant
AMM
’s assertions that his son in
Somalia
had been killed and
his wife and another child forced to flee to Ethiopia, following an attack upon
his farm in
Somalia
. Immigration Judge Glossop’s determination was not
successfully challenged by appellant
AMM
. For some reason, however, the
respondent decided to accept a further claim to asylum by appellant
AMM
. That
claim having been rejected, appellant
AMM
again appealed and his appeal was
heard by Immigration Judge Harris, who dismissed it, by means of a
determination sent on 18 February 2008. The grounds upon which appellant
AMM
sought reconsideration under section 103A of the Nationality, Immigration and
Asylum Act 2002 of Immigration Judge Harris’s determination related to Articles
2 and 3 of the ECHR and Article 15(c) of the Qualification Directive (risk to
life or person from indiscriminate violence in situation of internal armed
conflict). On 4 August 2008, the Asylum and Immigration Tribunal in effect set
aside the determination of Immigration Judge Harris, save as regards the
Immigration Judge’s findings of fact in relation to
AMM
’s history.
7. The reconsideration
of appellant AMM
’s appeal was completed by the Tribunal at a hearing in October
2008, held jointly with that of another appellant, which resulted in the
country guidance determination of AM & AM. Appellant
AMM
’s appeal
was dismissed in that determination, in which the Tribunal considered his claim
to international protection by reference to Refugee Convention, ECHR and
Qualification Directive grounds. Permission to appeal to the Court of Appeal
was sought on the basis that the Tribunal had wrongly concluded that there was
uncertainty as to the “method of return” of appellant
AMM
to
Somalia
by the
respondent and that the Tribunal had accordingly materially erred in law in its
conclusion as to appellant
AMM
’s entitlement to refugee status or humanitarian
protection. Further challenges related to the alleged error in acquiring a
“differential impact” to be shown in relation to real risk of being persecuted
or suffering serious harm and in relation to the assessment of the situation in
central and southern
Somalia
, as regards persecution or other serious harm.
8. Permission to appeal
was granted by Sedley LJ on 18 December 2009 on all of the grounds advanced by
appellant AMM
. On 23 April 2010 the Court of Appeal allowed appellant
AMM
’s
appeal and remitted the matter to the Upper Tribunal (Immigration and Asylum
Chamber).
Appellant MW
10. Appellant MW claimed
asylum on 27 May 2008, which was refused in August 2008. She appealed against
that decision and her appeal was heard by Immigration Judge Woolley on 12 September 2008. The Immigration Judge found appellant MW to be a majority clan member
from Merka, in lower Shabele, south-west of Mogadishu. The judge found that
appellant MW had left Somalia
in 1999 to live in Ethiopia with her aunt. The
Immigration Judge made no finding as to appellant MW’s claim that she and her
aunt lived in Ethiopia without immigration status and were supported by money
sent from Canada from a cousin. Nor was there any specific finding regarding
appellant MW’s assertion that her parents were dead and that she had no
brothers and sisters. Immigration Judge Woolley heard evidence from Mr Osman
(as he now is) but did not find him to be credible. The Immigration Judge
concluded that Mr Osman could return to live in
Somalia
with appellant MW and
their son.
11. In dismissing
appellant MW’s appeal on asylum grounds, the Immigration Judge had regard to
the background evidence regarding violence against women in Somalia
, in particular in relation to those who had been displaced. On the basis that appellant MW
had been found to be from a majority clan, Immigration Judge Woolley found that
there was no “differential impact” of the kind required by the House of Lords
in Adan [1998] UKHL 15, over and above that faced by others caught up in
clan warfare. On the basis of the country guidance set out in HH &
Others (Mogadishu: armed conflict: risk)
Somalia
CG [2008] UKAIT 00022, the
Immigration Judge found that appellant MW had not demonstrated that she was
entitled to humanitarian protection by reference to Article 15(c) of the
Qualification Directive.
12. Reconsideration of
Immigration Judge Woolley’s decision was ordered under section 103A of the 2002
Act on 10 October 2008 and on 1 December 2009 the Asylum and Immigration
Tribunal found that the determination contained a material error of law. The
Immigration Judge had concluded that much of the background material adduced by
appellant MW referred back to country information considered by the Tribunal in
HH & Others, whereas the AIT found that this was “quite inaccurate
as a description of the materials before” the Immigration Judge. Those
materials were capable of giving rise to a different assessment of conditions
in Somalia
, as could now be seen from the case of AM & AM. The
present proceedings accordingly constitute in effect the completion of the
reconsideration of appellant MW’s appeal.
Appellant ZF
15. Appellant ZF was born
on 1 January 1944. She arrived in the United Kingdom on 17 September 2009 and claimed asylum, asserting that she was a member of the Reer Hamar minority
clan, having been born in Mogadishu and lived there until fleeing to Afgoye.
In October 2009 the respondent refused appellant ZF’s application and appellant
ZF appealed to the Asylum and Immigration Tribunal. Immigration Judge Upson
heard her appeal on 18 March 2010. The Immigration Judge found appellant ZF
not to be a witness of truth. The Immigration Judge essentially found that
appellant ZF came from north-western Somalia
, noting that the linguistic report
prepared by the respondent in respect of appellant ZF had found her “with
certainty” to come from that part of
Somalia
, on the basis of her speech and
vocabulary. The most the Immigration Judge was prepared to accept of her
account was that there was “a chance that she has lived in Mogadishu”. Her
story of living in southern
Somalia
with two nieces, being regularly beaten but
nevertheless raising $3,000 to pay agents for her passage to the United Kingdom was, likewise, rejected by the Immigration Judge. The Immigration Judge was
presented at the hearing with documents showing that appellant ZF suffered from
asthma, high blood pressure and rheumatism. She said she had been taking
paracetamol for these conditions.
“The question of whether
[appellant ZF] can access effective internal protection if returned to
Mogadishu needs further consideration in light of the Court of Appeal’s
decision in HH (Somalia
) [2010] EWCA Civ 426 April 2010 that indicates
that a safe route of return is not a matter for administrative decision as to
the time of removal but may require the grant of subsidiary protection status
unless and until safe access is identified.”
17. On 13 January 2011, Mr Kandola, a Presenting Officer, conceded on behalf of the respondent that there
was an error of law in the determination of Immigration Judge Upson and that
that determination should be set aside. Mr Schwenk, for appellant ZF conceded on
her behalf that the adverse credibility findings of the Immigration Judge
should nevertheless stand for the purpose of the present proceedings. It is
also necessary to observe at this stage that the reference to appellant ZF
coming from north-west Somalia
is a reference to her coming from Somaliland.
Appellant FM
18. Appellant FM was born
in Mogadishu on 5 August 1987 and lived in the district of that city known as
Hamar JaabJab. He claimed to have left Somalia
in February 2006 and gone to Kenya, where he lived and worked in Nairobi, before flying from Kenya to an Arab country on 3 July
2006 and then on to the United Kingdom, which he entered using forged
documentation. Appellant FM claimed asylum in Liverpool on 6 July 2006.
21. Appellant FM claimed
he was a member of the minority Ashraf clan who had married a member of the
Hawiye clan, against the wishes of his wife’s family. That family had detained
appellant FM for four days until his aunt bribed a guard to have him released,
after which he left Somalia
.
22. The Immigration Judge
did not find appellant FM or his witness to be credible, as regards appellant
FM’s claim to come from the Ashraf clan. The Immigration Judge nevertheless
accepted that appellant FM came from Hamar JaabJab in Mogadishu. Applying the
country guidance in AM & AM, the Immigration Judge concluded that
return to Mogadishu would cause appellant FM to face a real risk of serious
harm as defined in Article 15 of the Qualification Directive and treatment
contrary to Article 3 of the ECHR (paragraph 56 of the determination). The
Immigration Judge accordingly considered the issue of internal relocation. At
paragraph 65, she did not consider the situation in central and southern
Somalia
had deteriorated since AM & AM was decided, to the point
that it reached the threshold where civilians per se or Somali civilian IDPs
per se faced a real risk of persecution or serious harm or treatment proscribed
by Article 3 ECHR. Appellant FM was 22 years old and able-bodied with no
reported health problems. On the other hand, he had been out of
Somalia
for nearly four years and might be “less adept than persons living there currently
at dealing with ongoing difficulties. It is also reasonably likely that it
will become known he has been in the UK and that as a consequence he may be
perceived as someone who has or has access to relative wealth” (paragraph 66).
Nevertheless, at paragraph 67, having considered “all relevant factors” the
Immigration Judge concluded that appellant FM had “a viable internal relocation
alternative. This would be so even if he is required to live in an IDP camp.”
23. On 1 July 2010 Sedley LJ ordered appellant FM to renew his application for permission to appeal in
court and on notice to the respondent. This was on the basis that Sedley LJ
found it “hard to see how such a finding [of internal relocation away from Mogadishu] can stand without some prior finding as to (a) where in Somalia
A can be reasonably safe and (b) whether he can get there in reasonable safety”. Sedley LJ
also thought it presently arguable that “it may have been irrational to
conclude that a condition affecting up to half the population does not
represent a real risk for anyone without access to special protection”. On 27 October 2010 the Court of Appeal ordered that “the appeal against the determination of
the Asylum and Immigration Tribunal promulgated on 20 December 2009 be withdrawn on the basis that the appeal be remitted for a differently constituted Tribunal
to carry out a de novo second stage reconsideration of the applicant’s appeal”.
Appellant AF
24. Appellant AF was born
on 6 October 1957 in Merka, a city on the coast of southern Somalia
, some 70kms south-west of Mogadishu. He arrived in the United Kingdom on 9 November 2001
and claimed asylum. Appellant AF’s application was refused on 29 January 2003 and he appealed to an Adjudicator, who dismissed his appeal on 10 October 2003. On 2 March 2006, appellant AF made a fresh claim for asylum, which was
refused on 13 March 2006. His subsequent appeal against that refusal was dismissed
by an Immigration Judge on 24 April 2006 but on 15 August 2006 the High Court
ordered reconsideration of that determination, pursuant to section 103A of the
2002 Act.
PART C
SOMALI COUNTRY GUIDANCE CASES
27. From the start of the
civil war in Somalia
in the early 1990s until the rise of the Union of Islamic
Courts and, more recently, Al-Shabab, the internal conflict in
Somalia
was primarily
clan-based, with majority clans using their militias to battle rival armed
clans and also to dominate minority clans, which lacked militias of their own
or majority clan patronage. A number of the earlier country guidance cases of
both the Immigration Appeal Tribunal and the Asylum and Immigration Tribunal
were, accordingly, intended to address the significance of membership of a
particular clan.
NM and Others (Lone women - Ashraf) Somalia
CG [2005] UKAIT 00076
“Male and female members of minority clans from the south will, in general, be at risk of breaches of their Article 3 rights, and will be refugees, in the absence of any evidence that they have a clan or personal patron and the means to access that area of safety without a real risk. Were such evidence to exist, which at present would be unusual, their return would involve no breach of either Convention. We recognise that there may be minority clans who are, at least locally, integrated with majority clans, and other groups who may not be a minority clan at all, being closer to a caste. Those will require specific consideration. We also recognise that a division between minority and majority does not represent a bright line on one or other side of which every clan must fall, because there are some which could be considered to be intermediate.”
29. At [118] the Tribunal
held that there was “obviously a greater risk for lone females both in the
place of safety and in access, both in terms of degree of risk of occurrence
and degree of severity of ill-treatment. Their position would call for
particular care.” On the other hand, a person of either gender who was not
found to be a minority clan member would be subject to different
considerations. There was likely to be a location in southern Somalia
in which the majority clan would be able to afford protection sufficiently for
neither Convention to apply. It was, however, important not to over-generalise
[119]. The question of assessing risk in accessing places of safety would
arise more strongly for females than males. Many routes had checkpoints or
roadblocks. Majority clans, which will have their own militias, could be
expected to provide military escorts for returnees and such returnees would be
objectively able in most cases to prearrange such protection [122].
30. At [123] the Tribunal said this:-
“123. There are problems with those whose case has been so disbelieved that it is not known what their clan or place of origin is. It is difficult to see that such a person could succeed; he or she would be a majority clan member who was in effect declining to demonstrate, even to the low standard of proof that they were at risk on return because unable to arrange for clan militia escorts from Mogadishu or wherever else they might be returned to.”
31. At [125] the Tribunal
did not accept that the general conditions of life or circumstances in Somalia
engage the obligations of the Refugee Convention for all returnees or all female
returnees, in the light of Adan. Being a single woman returnee was not
in itself a sufficient “differential impact” in terms of Adan to engage
those obligations. Nor did the Tribunal consider that general conditions or
circumstances engaged Article 3.
32. At [126] the Tribunal addressed the position of Somaliland and Puntland:-
“126. Returnees or lone women returnees claiming protection under the Refugee Convention or under the Human Rights Convention who are found to be former residents of Somaliland or Puntland or persons having a connection with a clan or sub-clan based in either of those regions, would not in general face a real risk of serious harm, whether or not they could arrange in advance for clan militia protection to meet them at the airport and escort them thereafter, provided that they were returned directly to those areas and not via Mogadishu. If they were to be returned via Mogadishu, we do not know whether a majority clan militia escort could be arranged for them.”
33. As for internal
relocation, this was considered not in general to be a viable option for
members of minority clans except where they would be able to obtain majority
clan protection in a secure area [128]. For majority clan members, it might be
a viable option for those whose clan had a secure location elsewhere within
southern Somalia
than where the claimant originated, if the claimant’s home
area was not or had ceased to be one where the majority clan was sufficiently
strong to provide protection.
“108. The extensive reliance upon UNHCR material makes a few observations germane. The value of the UNHCR material is first that where it has observers on the ground, it is in a good position to provide first hand information as to what in fact is happening. The process then whereby its observations of what is happening become position papers or recommendations is likely to increase the objectivity and soundness of its observations in that respect. It has a special role in relation to the Geneva Convention. It may also well be able to offer Governments advice on the practical implications of the forced or mass return of people who are not refugees; these implications may include infrastructure, economic conditions, resettlement facilities and absorption capacity; a slower rate of return may make the local government’s task or the UNHCR task as a reception body that much easier to perform well.
109. But their comments have their limitations and these need equally to be understood. The UNHCR often speaks of inhibitions on the return, usually forced, of failed asylum seekers, who have been rejected after a proper consideration of their claims. It follows that the UNHCR is not then commenting on the return of refugees at all; it is acknowledging that they would not face persecution for a Convention reason and it is going beyond its special remit under the Geneva Convention. This is not a question of picking up on loose language. The UNHCR is perfectly capable of using language which shows that it is or is not dealing with the risk of persecution for a Convention reason, and sometimes does so. These are considered papers after all.
110. This
is illustrated by UNHCR position papers, such as the January 2004 one dealing
with Somalia
, where UNHCR has responsibility for voluntary repatriation
programmes, currently confined to northern
Somalia
, and has evident
consequential concerns referred to in paragraph 3 of this report about “over-stretched
absorption capacity” even in the relatively stable northern part of
Somalia
. Reasons of this kind lead UNHCR to discourage signatory states from going ahead
with enforced returns of rejected asylum seekers. However, the only
issue arising on statutory appeals on asylum or asylum-related grounds before
Adjudicators and the Tribunal is whether the claimant is a refugee and if so,
whether to return a person to
Somalia
would breach the Geneva Convention or
constitute treatment contrary to Article 3 ECHR or any other Article, where
engaged. The question of absorption problems that might flow from any United Kingdom government decision to enforce returns in numbers is not of itself the basis for showing that return would breach either Convention.
.111. The UNHCR, in such circumstances and they arise very frequently, is pursuing what it sees as its wider remit in respect of humanitarian and related practical considerations for the return of people, particularly on a large scale. This is a common problem where the country of refuge borders the country of past persecution or strife. What it has to say about the practical problems on the ground will be important where it has staff on the ground or familiar with the conditions which a returnee would face.
.112. But the assessment of whether someone can be returned in those circumstances is one which has to be treated with real care, if it is sought to apply it to non Refugee Convention international obligations, especially ECHR. The measure which the UNHCR uses is unclear; indeed, realistically, it may be using no particular measure. Instead, it is using its own language to convey its own sense of the severity of the problem, the degree of risk faced and the quality of the evidence which it has to underpin its assessment. It is often guarded and cautious rather than assertive because of the frailties of its knowledge and the variability of the circumstances.
.113. This is not to advocate an unduly nuanced reading of its material, let alone an unduly legalistic reading. It is to require that the material be read for what it actually conveys about the level of risk, of what treatment and of what severity and with what certainty as to the available evidence. But there may be times when a lack of information or evidence permits or requires inferences to be drawn as to its significance, which is for the decision-maker to draw. There is often other relevant material as well.
.114. UNHCR’s language is not framed by reference to the ECHR and to the high threshold of Article 3 as elaborated in the jurisprudence of the Strasbourg Court and of the United Kingdom. That is not a criticism – it is not an expert legal adviser to the United Kingdom courts and couches its papers in its own language. So its more general humanitarian assessments of international protection needs should to be read with care, so as to avoid giving them an authority in relation to the United Kingdom’s obligations under the ECHR which they do not claim. They may give part of the picture, but the language and threshold of their assessments show that the UNHCR quite often adopts a standard which is not that of the United Kingdom’s ECHR obligations.
.115. UNHCR papers are often not the only ones which Adjudicators or the Tribunal has to consider. Other organisations may have first-hand sources and differ from UNHCR; experts may bring a further perspective. A considered UNHCR paper is therefore entitled to weight but may well not be decisive.”
HH (Mogadishu: armed conflict: risk) Somalia
CG [2008] UKAIT 00022
35. It fell to the AIT in
HH to consider the meaning and effect of Article 15(c) of the
Qualification Directive, under which serious harm consists, inter alia, of a
“serious and individual threat to a civilian’s life or person by reason of
indiscriminate violence in situations of international or internal armed
conflict”. The Tribunal’s conclusion, that the existence of such a conflict
was to be determined by reference to international humanitarian law, was
disapproved by the Court of Appeal in QD (Iraq) [2009] EWCA Civ 620.
The Court’s conclusion, that the provision fell to be given an autonomous
meaning, was confirmed by the Court of Justice of the European Union in Elgafaji
[2009] EUECJ C-465/07. It is, however, common ground between the present
parties that the Tribunal’s finding in HH, that an internal armed
conflict existed in Mogadishu and its immediate environs as at the end of 2007,
was correct. The fighting, which at that time was between the TFG and its
Ethiopian allies on the one hand and the Union of Islamic Courts on the other,
was found not to be clan-based. The finding of the Tribunal was that,
generally speaking, neither side was engaging in indiscriminate violence.
Although clan support mechanisms were under strain, they had not broken down
[301]. A person displaced from Mogadishu to a makeshift shelter along the road
to Afgoye or in an IDP camp “may well experience treatment that would be
proscribed by Article 3 of ECHR” [299]. Although there was no current evidence
that women were specifically targeted in Somalia
at the present time [303]
there were risks for women who found themselves having to negotiate roadside
checkpoints alone. Neither air travel to and from Mogadishu nor the mobile
telephone network in southern
Somalia
had been significantly interrupted by the
conflict [370]. The indiscriminate violence generated by the armed conflict in
Mogadishu was not of such a level as to place the population of Mogadishu at risk of a consistent pattern of such violence [345].
AM & AM (Armed conflict: risk categories) Somalia
CG [2008] UKAIT 00091
36. Examining the evidence as at late October 2008, the AIT in AM & AM found that, since HH
“The situation in Mogadishu has changed significantly, both in terms of the extent of population of displacement away from the city, the intensity of the fighting and of the security conditions there. On the present evidence we consider that Mogadishu is no longer safe as a place to live for the great majority of its citizens. We do not rule out that notwithstanding the above there may be certain individuals who on the facts may be considered to be able to live safely in the city, for example if they are likely to have 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, we consider that in the cases of persons found to come from Mogadishu who are returnees from the UK, they would face on return to live there a real risk of persecution or serious harm and it is reasonably likely, if they tried staying there, that they would soon be forced to leave or that they would decide not to try and live there in the first place” [178]. The TFG, Ethiopian and AMISOM forces were “pitted against insurgent forces around Bakara Market” so that “at least 33 civilians were killed in the exchanges” on 22 September 2008. The UN Secretary General had spoken of “frequent attacks on civilians” which together with “the incessant level of harassment and intimidation by all militarised actors in the city is making living conditions for the civil population intolerable” [176].
38. At [144] the Tribunal
found that, since HH, the armed conflict in central and southern Somalia
“had spread to many other areas”. Accordingly, it held that “a situation of
internal armed conflict now exists throughout central and southern
Somalia
”. Notwithstanding this and the deterioration in the humanitarian situation in
southern
Somalia
in HH, the Tribunal in AM & AM was not
persuaded that the situation in central and southern
Somalia
generally had
reached the threshold where civilians per se or Somali civilian IDPs per se
could be said to face a real risk of persecution or serious harm or treatment
proscribed by Article 3 ECHR [156]. Although the level of violence had
increased, the numbers of those killed and wounded were not of great
magnitude. Civilians per se did not face a real risk of denial of basic food
and shelter and other bare necessities of life. In reaching this conclusion,
the Tribunal had regard, inter alia, to the evidence which indicated that “even
though aid agencies can meet with obstruction and dangers in delivering aid to
IDPs in need … a significant percentage of those in need are reached” [157].
Furthermore, as regards those not so reached, evidence emanating from Nairobi indicated that “most people [in IDP camps] are helped by Somalis from the
Diaspora”. Accordingly, the assessment of the extent to which IDPs face
greater or lesser hardships, outside Mogadishu, would vary significantly:-
“depending on a number of
factors: e.g. IDPs from more influential clans or sub-clans appear to have a
better chance of being tolerated in the area to which they have fled …; IDPs
who have a traditional clan area they can travel to, especially if in that area
they have family, or friends, or close clan or sub-clan affiliations, appear to
have better prospects of finding safety and support, although not if the area
concerned is already saturated with fellow-IDPs …; those who lack recent
experience of living in Somalia
appear more likely to have difficulties dealing
with the changed environment in which clan loyalties have to some extent
fractured …; persons returning to their home area from the UK may be perceived
as having relative wealth and be more susceptible to extortion, abduction and
the like …; those who live in areas not particularly affected by the fighting
and which are seen as not important strategically to any of the main parties to
the conflict would appear less subject to security problems; whether the IDPs
are female also appears a significant factor, given the evidence of the
additional risks women and girls face of abduction, rape and harassment. To
these factors, of course, one has to add the variables of age and state of
health. Also relevant will be the evidence about the prevailing economic
conditions in the area, bearing in mind the recent history of cruel droughts,
poor harvests and rising food prices.” [160]
39. At [182] the Tribunal
found that in relation to IDPs who had fled Mogadishu in recent times, their
plight was connected to what had happened to them there as a result of the
armed conflict and was “sufficient to meet the ‘by reason of’ test contained
within Article 15(c) of the Qualification Directive”. Those originating from
outside Mogadishu who sought to rely on Article 15(c) would, however, need to
demonstrate that their particular area was experiencing a consistent pattern of
indiscriminate violence giving rise to a serious and individual threat, since
as a general matter central and southern Somalia
(other than Mogadishu) was not
in such a state [184]. Even then, the person concerned would have to establish
that he or she had “no viable internal relocation alternative”.
41. As with HH,
the Tribunal’s analysis of internal armed conflict in AM & AM was
subsequently found to have wrongly drawn on international humanitarian law
concepts. Nevertheless, as with HH, the Tribunal’s conclusions
regarding Article 15(c) both as regards Mogadishu and elsewhere in central and
southern Somalia
, were accepted by the parties to the present appeal as
constituting the appropriate starting point for the up-to-date evaluation that
this determination will undertake.
43. In AM & AM, the Tribunal held that it was not “possible to say that matters relating to the method of return are implicit in the immigration decision and on that basis it does not fall within our jurisdiction to assess risk relating to it” [191]. That finding now has to be read in the light of the Court of Appeal judgments in HH and others [2010] EWCA Civ 426. Nevertheless, the Tribunal went on to make obiter findings regarding the security situation at Mogadishu International Airport and the road from it to Mogadishu [191]. The Tribunal concluded that, despite the evidence of difficulties the overall evidence “does not demonstrate that for travellers from MIA to Mogadishu there is a real risk en route of persecution or serious harm” [195].
PART D
SCOPE OF THE PRESENT APPEALS AND COUNTRY GUIDANCE
“Of course in the case of Somali claimants who are able to satisfy the respondent or the Tribunal that they have given a credible account of the existence of a risk personal to them, there will often be little difficulty in showing a Convention ground based on race (clan) or religion (if pro- or anti-jihadist) or political opinion (if perceived as pro- or anti-government or pro- or anti-insurgents). However (excluding the fact that in the case of AM2 it is an accepted fact that he is a member of the Sheikhal Logobe clan), our focus in these appeals is confined to persons who have failed to show any personal risk characteristics beyond their nationality and home area. Is it possible to identify any Convention ground at this level of generality? We think not.”
“As Ms Laing herself put it during her closing submissions, there are no ‘hermetic seals’ between this issue [Article 15(c)] and the subject-matter covered by the refugee protection and Article 3 grounds. It is apparent from the Tribunal cases of HH and KH that the subject-matter of Article 15(c) protection is seen to overlap heavily with the subject-matter of refugee protection and Article 3 protection” [13].
In this regard, we would add that the scheme of the Qualification Directive requires decision-makers to give primacy to an assessment of refugee protection over subsidiary protection.
47. On 12 November 2010,
the Tribunal gave directions, prior to the first of a number of case management
hearings in relation to the present appeals, in which the proposed new country
guidance was identified as “risk on return to Mogadishu; conditions in that
city and its environs for those who come from there or might be expected to
live there on return; conditions in other areas of Somalia
; and safety en
route between the airport and those other areas; as well as risk to men and
women respectively”. Following discussion at the case management hearing on 13 January 2011, at which the respondent was represented, that proposed description of
country guidance was confirmed. At no point prior to the commencement of the
substantive hearing (and submission of the respondent’s initial skeleton
argument), was it suggested by the respondent that – contrary to the approach
adopted in HH and AM & AM – the Refugee Convention was not
expected by the respondent to play any part in the current appeals.
48. There is force in
what the appellants say regarding the fact that, in framing the instructions to
the expert witnesses, it would have been evident to the respondent that issues
relating to serious harm, capable of falling within the Refugee Convention,
were to be explored. This is particularly the case in relation to having to
live under the rule of Al-Shabab. Although that organisation was in existence
at the time of AM & AM and the determination in that case makes
reference to its attitude towards civilians within its control, one of the
important developments that has undoubtedly occurred since AM & AM
has been the widening of Al-Shabab’s sphere of influence, so as to encompass
most of southern Somalia
. The evidence gathering exercise has also uncovered a
good deal about alleged Al-Shabab practices.
50. Of course, regardless
of what has just been said, it would not be possible for this Tribunal to
engage substantively with Refugee Convention issues if, as a matter of law, it
was precluded from doing so; in particular, by the terms on which an appeal had
been remitted to it by the Court of Appeal. There is, however, no such
restriction in the Court of Appeal’s orders in respect of appellants AMM
, FM
and AF (see Part B above). The same is true in relation to the means by which
the other two appellants’ appeals have reached us. Furthermore and in any
event, the respondent has not identified anything in the structure of the
appellate system under the Nationality, Immigration and Asylum Act 2002 and the
Tribunals, Courts and Enforcement Act 2007 that might have the effect of
precluding the Tribunal from resolving a Refugee Convention issue that it finds
has properly arisen in respect of a pending appeal. In this regard, Mr Symes
was, we consider, right to rely upon R v Secretary of State for the Home
Department and Immigration Appeal Tribunal, exp Robinson [1997] Imm AR 568:-
“[37] It follows from what we have said that it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum-seeker leave to enter as a refugee, and that they are not limited in their consideration of the facts by the arguments actually advanced by the asylum seeker or his representative.”
52. So far as the
particular social group of women is concerned, Mr Eicke raised an objection to
the Tribunal giving country guidance on the issue of female genital mutilation
in Somalia
. As will be seen from Part H of this determination, the respondent,
in her closing written submissions, has raised a legal issue as to the legal entitlement
of appellant MW to succeed in an international protection claim by reference to
the risk of FGM being performed on her daughter. Regardless of the resolution
of that issue, however, the fact is that appellant MW has, pursuant to the
Tribunal’s case management directions, put forward a large amount of detailed
evidence regarding FGM in
Somalia
. Ms Short, for appellant MW, was correct to
state that the AIT had been “poised to give country guidance on the risk of FGM
in
Somalia
in a case called SH (
Somalia
) Court Ref …” as set out in the
witness statement of James Elliot at page 78 of bundle MW1. That appeal was
required to be treated as abandoned after the respondent conceded the appeal
and granted the appellant refugee status, before the country guidance hearing
could take place.
54. Accordingly, the
issues in these appeals and the country guidance which arises therefrom,
encompass the Refugee Convention, Article 15(b) and (c) of the Qualification
Directive and Article 3 of the ECHR. The risks and related issues with which
we are concerned are risk from armed conflict, in Mogadishu and, separately,
elsewhere in southern and central Somalia
; risks from Al-Shabab, as regards
that organisation’s religious and social practices, including punishments; risks
from allegedly lawless elements of the TFG/AMISOM; risks from other criminal
elements; internal displacement; the general humanitarian position; and the
practice of female genital mutilation. We approach the task of giving country
guidance by taking the existing relevant country guidance on
Somalia
as our starting point. There is no formal burden on a party to show there has been any
change in circumstances (see EM and Others (Returnees) Zimbabwe CG
[2011] UKUT 98 (IAC) 98).
PART E
THE ECtHR JUDGMENT IN SUFI & ELMI AND ITS BEARING ON THE PRESENT APPEALS
55. On 28 June 2011 the Fourth Section of the European Court of Human Rights gave judgment in the case of Sufi & Elmi v the United Kingdom [2011] ECHR 1045. Both Sufi and Elmi asserted that they risked being ill-treated or killed, if the Government of the United Kingdom returned them to Mogadishu. The ECtHR granted interim measures under rule 39 of the Rules of Court on 27 February and 14 March 2007 respectively, to prevent the removal of Sufi and Elmi to Mogadishu, prior to the Court’s consideration of their applications. Some 214 similar cases are, apparently, pending before the ECtHR.
The Applicants’ circumstances
57. Sufi, born in 1987,
entered the United Kingdom illegally in September 2003 and subsequently claimed
asylum on the basis that he was a member of a minority clan who had been
persecuted by majority clan militia, who had also killed members of his
immediate family. The Secretary of State rejected Sufi’s claim and his
subsequent appeal to an Adjudicator was dismissed, on the basis that Sufi’s
account of events in Somalia
was not credible.
60. Elmi was born in 1969 in Hargeisa, now the capital of the self-declared state of Somaliland. It appears that, when he
was 2 years old, his family moved to Mogadishu and he did not subsequently
return to Somaliland. Elmi’s father became the Military Attaché at the Somali
Embassy in London in 1988 and Elmi joined him in this country later that year.
In April 1989 Elmi made an application for asylum based on his father’s
position in the Somali army and beginning of the civil war in Somalia
. In October 1989 Elmi was recognised as a refugee and granted leave to remain until 31 October 1993. In January 1994 he was granted indefinite leave to remain in the United Kingdom.
62. In June 2006 the
Secretary of State decided that Elmi should be deported, as a result of his
criminal behaviour. The Secretary of State considered that Elmi could be
returned to Somalia
as he was a member of the Isaaq majority clan.
63. In October 2006
Elmi’s appeal against the deportation decision was dismissed by the AIT. The
Tribunal accepted that Elmi would not find support in relation to his drug
dependency in Somalia
but considered that he would not be at risk, as a member
of a majority clan. There was also a real likelihood of Elmi reoffending.
That conclusion proved to be correct. After Elmi had been granted the benefit
of rule 39 of the ECtHR’s Rules of Court, he was convicted, in March 2008, of
possession of a Class A controlled drug with intent to supply, for which he
received eighteen months’ imprisonment.
Background on Somalia
64. Paragraphs 37 to 47
of the ECtHR’s judgment contained a useful description of the factual
background to the conflict in Somalia
, which was agreed by the parties to the
applications. It can be summarised as follows.
65. Somalia
comprises 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
clan membership, with clans being divided into sub-divisions. The four majority
clans are Darod, Hawiye, Isaaq, and Dir. There are also a number of minority
groups, also sub-divided, whilst the Digil and the Mirifle take “an
intermediate position between the majority clans and minority groups” [38].
66. There has been no
functioning central government in Somalia
since President Barre was overthrown
by opposing clans in 1991. As those clans could not agree on a replacement,
lawlessness, civil conflict and clan warfare ensued. Mogadishu is fragmented
into rival, clan based factions. The Transitional Federal Government was
established in October 2004 but has failed to become a functioning government.
67. In June 2006 the
Union of Islamic Courts took control of Mogadishu and, later, control of most
of central and southern Somalia
. In 2006, a United Nations Resolution
authorised a deployment of an African Union and Intergovernmental Authority on
Development force to protect the TFG. Ethiopian forces also moved into
Somalia
to support the TFG, with the result that by the end of 2006 the Union of Islamic Courts had
been ousted from Mogadishu and much of the rest of southern
Somalia
. However, the semblance of order in Mogadishu that had been established under the rule of
the UIC deteriorated, with a return to banditry and violence, as well as
attacks on the TFG and Ethiopian forces, with civilians caught up in the
fighting on a frequent basis. There was significant displacement of the
civilian population.
68. In 2007 Somali
Islamists and opposition leaders joined forces to fight the TFG/Ethiopians.
Although a ceasefire was signed in August 2008, Islamic insurgents were not
party to the agreement and, by late 2008, these insurgents, including
Al-Shabab, had regained control of most of southern Somalia
.
69. Ethiopia removed its troops from Somalia
in January 2009 and Al-Shabab took control of Baidoa,
formerly a government stronghold. In May 2009 insurgents launched an attack on
Mogadishu and by October of that year Al-Shabab had consolidated its position
as the most powerful insurgent group, driving its main rival, Hisbul Islam, out
of the southern city of Kismayo. Al-Shabab openly declared allegiance with
Al-Qaeda. In December 2010 Hisbul Islam and Al-Shabab merged.
Case law
70. The ECtHR had
specific regard to the Tribunal’s country guidance cases of NM & Others,
HH & Others and (most significantly, because it was the most recent)
AM & AM. The Court was also aware of the Court of Appeal judgments
in HH and others [2010] EWCA Civ 426, including the fact that, in
addition to HH, appellant AM number 1 in AM & AM had also appealed to the Court of Appeal and was dealt with in the judgments there, as well as
two other appellants including one known as MA. Appellant MA’s case is
described at paragraph 77 of the ECtHR judgment. However, it does not appear
that the ECtHR’s attention was drawn to the fact that the Secretary of State’s
subsequent appeal in MA’s case to the Supreme Court was successful (MA (Somalia
) [2010] UKSC 49).
71. Two other cases were
noted by the Court. In AM (Evidence – route of return) Somalia
[2011] UKUT 54 (IAC) the Upper Tribunal found that it would not be a breach of Article
3 for a person to travel from Mogadishu International Airport to Afgoye, noting
that travel took place with some degree of regularity along this route and
that, as the appellant had lived in Yemen and Saudi Arabia, he would be well
able to anticipate and comply with the requirements of Al-Shabab.
72. Finally, the Court
noted the judgment of 24 February 2011 of the Swedish Migration Court of Appeal
where the Swedish Court found that an internal armed conflict existed
throughout the whole of central and southern Somalia
, which was sufficiently
serious to expose the Somali applicant in question to a risk of serious harm,
even though he could not demonstrate that he would be specifically targeted.
The Court considered that the situation in recent months “had become very
unstable and unpredictable” and that the presence of the United Nations and
other international organisations “had decreased and, as a consequence,
detailed updated information was hard to come by” [79]. Although safety in Somaliland and Puntland was acceptable, a Somali returnee could only gain admittance to
those areas if seen as belonging or having a connection to them.
Relevant country information
73. At [80] to [97], the
Court described, in some detail, the report of the Fact-Finding Mission to Nairobi of September 2010, which is also one of the sources of evidence before us. There
was general agreement that the TFG/AMISOM controlled the airport, seaport,
Villa Somalia
and the road between the airport and Villa
Somalia
. The security situation in Mogadishu was described by sources as poor. Al-Shabab areas of
the city were at risk of shelling by AMISOM, and vice-versa. Both sides
carried out indiscriminate shelling and there was constant movement of IDPs in
and out of the city. One diplomatic source suggested, however, it would be
possible to live in non-conflict areas of the city, which were generally
considered to be safe. Al-Shabab violence had become more sophisticated over
the past year as some foreign fighters had been brought in.
75. There was no
consensus on which groups controlled other regions in central and southern Somalia
, although it was agreed that Al-Shabab controlled most of the land south of the
line drawn between Beletweyne and Dhusarmareb. Militias aligned with the TFG
controlled pockets of land on the Ethiopian border. Hisbul Islam was nominally
in control of some small areas, but even here Al-Shabab’s influence was
significant. A region known as Galmudug was controlled by a local clan-based
administration acting under the umbrella of Ahlu Sunna Waljamaca [89]. Certain
sources considered areas controlled by Al-Shabab to be stable and safe for
Somalis who were able “to play the game”, contrasting with a view of an
international NGO that there were no safe areas in south central
Somalia
as
long as Al-Shabab and Hisbul Islam were present [92]. Nevertheless, sources
indicated that in Al-Shabab areas human rights were practically non-existent
because of the organisation’s interpretation of Sharia law and that this
particularly affected women [94].
77. The Court had regard
to the Norwegian Directorate of Immigration Country of Origin Centre Somalia
: Security and Conflict in the South report of 23 August 2010, which described the situation in southern
Somalia
and Mogadishu in particular as unstable, with areas of
control changing quickly. 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” [111]. In Mogadishu, there was a difference between the northern and southern parts of the capital.
Certain areas – Hodan, Hawl, Wadaag, Wardhingley, Yaqshiid, Bondheere, Shibis,
and Abdulaziz - were hardest hit; Medina, Dharkley, Hamar Weyne, Waaberi, and
Hamar JaabJab less so. The UNHCR figure of 370,000 displaced persons in
Mogadishu and 360,000 in the Afgoye Corridor were estimates, based on satellite
images and, according to a well-informed international aid worker, many houses
have been built “to mislead aid organisations” [119]. Outside Mogadishu, fighting was mostly localised around certain key areas and towns. The main
challenge for the population of southern
Somalia
was, however, humanitarian in
nature.
79. As well as the report
of an “independent expert” dated 16 September 2010, dealing mainly with the
humanitarian position and the behaviour of Al-Shabab, the Court noted the
UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs
of Asylum Seekers from Somalia
of 5 May 2010. UNHCR concluded “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
” [135]. The UNHCR identified three potential agents of
persecution: (i) Al-Shabab/Hisbul Islam, which had admitted using civilians as
human shields, intimidated and assassinated civilians working for or perceived
as collaborating with the TFG/AMISOM, as well as engaging in forced recruitment
and imposing social decrees of an extreme and abusive nature; (ii) criminal
elements in Mogadishu, who put at risk business persons and civil societies
there; and (iii) the TFG/AMISOM, who indiscriminately shelled civilian areas of
Mogadishu in reprisal for Al-Shabab mortar attacks.
80. The UNHCR Guidelines
considered that effective state protection was unavailable in southern and
central Somalia
, given the situation of armed conflict and the inability of the
government to extend control over any territory outside a few districts in Mogadishu. Since 2007 clan protection had been undermined in Mogadishu and increasingly in
other regions, including as a result of Al-Shabab/Hisbul Islam interpretations
of Sharia law.
81. The Court also had
before it various Amnesty International and Human Rights Watch Reports,
including the latter’s “Harsh War, Harsh Peace”, which was relied on by the
appellants in the present appeals. In the HRW Report “Welcome to Kenya” of June 2010, details were given of what were said to be continuing abuses
perpetrated by the Kenyan authorities against Somali refugees and asylum
seekers. World Food Programme and Médicins Sans Frontières described the
humanitarian problems facing those in southern and central Somalia
and, amongst the news reports referred to by the Court, was one from the Guardian of 3 February 2011, that
Somalia
“was once again facing a malnutrition crisis” [194].
The ECtHR’s Assessment
Mogadishu
83. Looking at post-AM
& AM events, the Court noted that the situation in Mogadishu had
improved in 2009 but that “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” [244].
In particular, this involved firing mortars indiscriminately in the general
direction of opposition fire or bombarding areas such as Bakara Market,
considered to be opposition strongholds. Reports also indicated that the
security situation in Mogadishu deteriorated in 2010. For instance, statistics
from the Elman Peace Centre of Somalia
recorded that 918 civilians had died in
the first seven months of 2010 and a further 2,555 were injured. There were
thus thousands of civilian casualties, to which had to be added the
displacement of hundreds of thousands of people. Any changing tactics by
Al-Shabab as a result of recruiting foreign fighters had not in any way reduced
the risk to civilians; on the contrary one source told the Fact-Finding Mission
that new tactics included random attacks on civilians [246]. The Norwegian
Directorate’s report indicated that increasing professionalism on the part of
Al-Shabab had resulted in “greater brutality”. Whilst fighting in Mogadishu was more intense in some areas than others, the position on the ground was
capable of changing on a daily basis [247]. Accordingly, at [248], the Court concluded
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 had regard to “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”.
84. At [249] the Court
considered the exception identified by the AIT in AM & AM of certain
individuals “exceptionally well-connected to ‘powerful actors’ in Mogadishu [who] might be able to obtain protection and live safely in the city”. The ECtHR
noted it had not received any submissions specifically addressed to this issue
and the country reports on it were “largely silent”. Nevertheless, the Court
decided not to exclude the possibility that it might be shown in the case of an
individual applicant that he or she was “a well-connected individual” who
“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” and it was not enough to show that an individual was merely a
member of a majority clan. Secondly the Court recalled that in HH and
others in the Court of Appeal that Court had 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 had recently been in
Somalia
.”
Southern and central Somalia
(outside Mogadishu)
(a) The internal relocation alternative
85. Although the ECtHR
observed in Sufi & Elmi that the United Kingdom Government intended
to return the applicants to Mogadishu, the Court decided in the light of the
findings in AM & AM that it was necessary to consider whether the
applicants could relocate to a safer region in southern or central Somalia
.
86. So far as Somaliland or Puntland were concerned, the Court found that Somali nationals would not be
able to gain admittance there unless they were born in the region in question
or had strong clan connections with it. The Court was not, however, aware of
the existence of any similar obstacles preventing Somali returnees from gaining
admittance in other parts of southern and central Somalia
[267]. Nevertheless,
given the humanitarian crisis and resulting strain placed on individuals and
the traditional clan structure, the Court did not in practice consider a
returnee could find refuge or support in such an area of southern and central
Somalia
where he or she had no close family connections. Without such connections, or if
the returnee could not safely travel to an area where such connections existed,
then in both cases the Court considered “it reasonably likely that he would
have to seek refuge in an IDP settlement or refugee camp”.
(b) The risk in transit
or upon settling elsewhere in southern and central Somalia
87. At [268] the Court
observed that, although there were 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”. We take it
this is a reference to the 216 applicants (including Sufi and Elmi) referred to
earlier in the judgment as being subject to rule 39 orders. The Court held
that the situation in the airport was not such as to give rise to a real risk
of ill-treatment to somebody arriving there. It also noted that certain
journeys to places in central and southern
Somalia
from the airport did not
involve having to go to Mogadishu.
88. Although there were
reports of fighting in various towns in central and southern Somalia
, this fighting was categorised by the Court as sporadic and localised and that “other areas
have remained comparatively stable” [270]. It was therefore possible for a
returnee to travel from Mogadishu International Airport to another part of
central and southern
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 would “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” [271].
90. In the areas of their
control, Al-Shabab was enforcing “a particularly draconian version of Sharia
law, which goes well beyond the traditional interpretation of Islam in
Somalia
…and in fact amounts to a repressive form of social control” [273].
Al-Shabab were 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”. Women were
“particularly targeted” in that, in addition to strict dress codes, they were
not permitted by Al-Shabab to go out in public with men, even male relatives,
and had been ordered to close their shops. There were also reports of
systematic forced recruitment by Al-Shabab of adults and children.
92. At [275] the Court
assessed the evidence from a number of sources who had told the Fact-Finding
Mission “that areas controlled by Al-Shabab were generally safe for Somalis
provided that they were able to ‘play the game’ and avoid the attention of
Al-Shabab by obeying their rules”. Since, however, Al-Shabab only began
seizing parts of southern and central Somalia
in late 2006, the Court
considered it unlikely that a Somali “with no recent experience of living in
Somalia
would be adequately equipped to ‘play the game’ with a risk that he
would come to the attention of Al-Shabab, either while travelling through or
having settled in an Al-Shabab controlled area. The Court considers that this
risk would be even greater for Somalis who had been out of the country long
enough to become ‘westernised’ as certain attributes, such as a foreign accent,
would be impossible to disguise.” Again, it was not possible to predict the
fate of a returnee who came to the attention of Al-Shabab for failing to comply
with their rules. Evidence of punishments indicated that these could include
stoning, amputation, flogging and corporal punishment, all of which would fall
within Article 3. Although the Court accepted the likelihood that punishment
would depend upon the gravity of infringement, there was evidence that Somalis
had been beaten or flogged for relatively minor transgressions, such as playing
Scrabble, watching the World Cup or wearing inappropriate clothing.
Accordingly, the Court found 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-Shabab controlled area.
(c) Humanitarian conditions in refugee and IDP camps
93. So far in this précis
of the ECtHR’s findings in Sufi & Elmi, we have omitted the Court’s
discussion of various legal issues, since these are best dealt with separately,
later in this Part of the determination. In describing the Court’s findings
regarding the humanitarian conditions in refugee/IDP camps, however, it is
necessary at this point to say a little about the Court’s legal approach, not
least because the respondent in the present appeals took issue with it. In
essence, in apparent reliance on the recent ECtHR case of MSS v Belgium and
Greece [2011] ECHR 108, the Court concluded that, 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 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… This fact alone has resulted
in widespread displacement and the breakdown of social, political and economic
infrastructures. Moreover, the situation has been gravely exacerbated by
Al-Shabab’s refusal to permit international aid agencies to operate in the
areas under its control” [282]. Accordingly, at [283], the Court rejected the N
v United Kingdom approach and preferred that in MSS 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
timeframe”.
94. Assessing the
position on this basis, the Court found that conditions for internally
displaced persons in southern and central Somalia
were “dire”. Even before the
recent failure of the rains, over half of the population of
Somalia
was dependent on food aid; but, despite the humanitarian crisis, Al-Shabab continued to deny
international NGOs access to areas under its control [284]. Although it was
impossible to assess with any degree of accuracy how many IDPs were living in
the Afgoye Corridor, it could be as many as 410,000. Significant numbers of
these were being forced to return to Mogadishu in search of food and water.
IDPs were extremely vulnerable to exploitation and crime, as well as forced
recruitment to Al-Shabab. The increased urbanisation of the Afgoye Corridor,
as identified by the UK Government, was supported by a number of country
reports, but did not demonstrate that the conditions for the majority of IDPs
had improved. On the contrary, reports suggested IDPs were experiencing
difficulties in finding shelter in the Afgoye Corridor because landlords were
selling land that the IDPs could otherwise have lived on [286].
95. At [287] to [291],
the Court decided that it was appropriate to have regard to the evidence in the
Dadaab Camps in Kenya, to which the NGOs had direct access, and which were said
to be severely overcrowded, besides having high levels of theft and sexual
violence, exploitation by elements of the Kenyan authorities and risk of refoulement
to Somalia
by the Kenyan authorities. Having regard to this situation, the
Court decided that “any returnee forced to seek refuge in either camp [Dadaab
or the Afgoye Corridor] would be at real risk of Article 3 ill-treatment on
account of the dire humanitarian conditions”. If anything, conditions in
Somalia
were likely to be worse.
The Significance of Sufi & Elmi to the present appeals and country guidance
(a) Formal status
97. It is common ground
that, as a matter of international law, the United Kingdom is bound to abide by
a final judgment of the ECtHR (Article 46(1) ECHR). As Mr Eicke pointed out,
however, this has no relevance to the present proceedings, since the duty only
relates to the actual ruling of the Court in any particular case which, in Sufi
& Elmi is, not to remove either of those individuals to Somalia
and to pay their costs and expenses.
“court or tribunal determining a question which has arisen in connection with a Convention right must take into account any-
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
…
whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.”
99. In R (Alconbury Developments Ltd.) v Environment Secretary [2003] 2 AC 295, Lord Slynn had this to say about the duty in section 2:-
“Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and consistent jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court which is likely in the ordinary case to follow its own constant jurisprudence” [26].
100. In Ullah v Special Adjudicator [2004] UKHL 26, Lord Bingham approved that passage in Alconbury, holding that it:-
“reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law… The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”
101. The boundaries of that duty are described in R v Horncastle et al [2009] UKSC 14, where the Supreme Court held that:-
“There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspects of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg Court.” [11]
102. This was developed in Manchester City Council v Pinnock [2010] UKSC 45:-
“This Court is not bound to follow every decision of the EurCtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the EurCtHR which is of value to the development of Convention law… Of course, we should usually follow a clear and constant line of decisions by the EurCtHR: R (Ullah) v Special Adjudicator … but we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspects of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.” [48]
103. As Mr Eicke submitted,
it is also plainly the case that where a judgment of the Court of Appeal or
Supreme Court is binding on the Upper Tribunal, we must, compatibly with the
rules of stare decisis, follow that judgment, even if it might be
considered by the Tribunal to be incompatible with the Strasbourg Court’s clear
and constant jurisprudence. As we shall shortly explain, Mr Eicke submitted
that there is an aspect of the judgment in Sufi & Elmi which falls
squarely within this principle. As we have already indicated, it relates to
the ECtHR’s assessment of the humanitarian position in southern and central Somalia
.
105. In this regard, the appellants relied upon the judgments of the Court of Appeal in Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489. In that appeal, the IAT found that Batayav’s likely imprisonment in Russia would not violate his Article 3 rights, by reason of the conditions pertaining then in Russian prisons. The IAT dismissed the appellant’s appeal without considering the judgment of the ECtHR in Kalashnikov v Russia (2002) 36 EHRR 587, which held that the conditions in which Kalashnikov, as well as most other prisoners, were detained in Russia breached Article 3. At paragraph 25, the Court concluded that “If the only basis for deciding whether the appellant faced degrading treatment if returned to a Russian prison were Kalashnikov, the decision of the Tribunal would have to be reversed”.
106. By the same token, the
present appellants submitted that the effect of the decision in Sufi &
Elmi is that “So far as the appellants’ circumstances are materially similar
to Sufi’s or Elmi’s, their removal from the UK would violate Art 3 of the ECHR
unless it is shown that the situation in Somalia
has changed sufficiently since
it was examined by the Court to eliminate the identified risks”.
“22. The Secretary of State, whilst accepting that Kalashnikov is plainly relevant, asserts that it is neither binding authority nor, says Mr Garnham, does it provide definitive guidance on any of the issues of substance. The judgment in Kalashnikov, he says, is a conclusion on the facts of a particular case. No two cases alleging detention in conditions breaching Article 3 will be identical, and the Court must look at the individual circumstances of each case to decide if a violation has been established. The appellant’s experience of prison in Russia was, he says, hugely different from Kalashnikov’s and even on the evidence adduced by the appellant himself there was nothing to show that he had been kept in conditions breaching Article 3.
23. I cannot accept Mr Garnham’s submissions. As I have already said, the appellant’s remaining claim to the protection of Article 3 is founded not on his own particular circumstances but on the conditions faced generally by persons, whether or not the victims of persecution, incarcerated in the Russian prison system. To establish his case he does not need to refer to evidence specific to his own circumstances but rather to the evidence bearing on the class of which he is a member. In other words, in the circumstances of this case, to the evidence showing the conditions faced generally by persons incarcerated in the Russian prison system.
24. True it is that the decision in Kalashnikov focused on the conditions in which Kalashnikov himself had been detained, and addressed the question of whether he had been subjected to degrading treatment. But the wider significance of the case emerges from the Russian Federation’s admission that conditions which the Federation accepted fell below the standard set by other Member States of the Council of Europe, and which the Court held amounted to degrading treatment constituting a breach of Article 3, applied to ‘most detainees in Russia’.”
108. The Russian Federation’s admission that conditions in Russian prisons fell below relevant standards, as regards “most detainees in Russia” was, thus, highly significant. Since Batayav was at risk of being imprisoned if returned to Russia, there was really little else that needed to be said. Indeed, it would be difficult to see how a domestic court or tribunal in the United Kingdom could validly have found that, notwithstanding what was in substance a concession, the treatment faced by a prisoner in a Russian prison would not be contrary to Article 3. Another case where the factual matrix was indistinguishable from that in the relevant Strasbourg case was R (on the application of) EW v SSHD [2009] EWHC 2957 (Admin).
109. But in a situation as
multi-faceted and complex as Mogadishu and central and southern Somalia
, it is
doubtful whether a domestic court or tribunal, applying section 2 of the 1998
Act and the related jurisprudence, is necessarily obliged to draw
exactly the same conclusions as regards risk to returnees, as were reached by
the ECtHR in Sufi & Elmi, even where the raw evidence before the domestic
court or Tribunal is precisely the same as that which was before the ECtHR. In
United Kingdom law, at least, it is well-established that a fact-finding
tribunal is entitled (albeit within public law principles) to decide what
weight to give to each material element of the evidence before it. Indeed, as
we shall see, one of the areas of disagreement between the appellants and the
respondent in the present appeals centred on the weight (or, rather, lack of
weight) which the ECtHR saw fit to give to the respondent’s report of the
Fact-Finding Mission to Nairobi of September 2010. Whilst we are prepared to
accept that a domestic court or tribunal is still required by section 2 to
“have regard” to the weight which the ECtHR had seen fit to place upon the
particular piece of evidence, we do not consider that the House of Lords and
Supreme Court authorities, to which we have made reference, can be said to
compel the Tribunal to follow the Strasbourg Court, to the extent of placing
precisely the same weight on that evidence as the Strasbourg Court has seen fit
to do, in a case where the weighing of that evidence is something the domestic
court or tribunal is required to undertake. The references in the domestic
authorities to “jurisprudence” cannot properly be said to encompass the task of
attributing weight to evidence.
110. In so finding, we are aware that the Strasbourg Court has, from time to time, seen fit to give guidance on the approach to evidential materials in international protection cases. Thus, in NA v United Kingdom [2008] ECHR 616 the Court had this to say about the use to be made of materials emanating from a Contracting State and from “other reliable and objective sources”, such as other States, UN agencies and reputable NGOs:-
120. In assessing such material, consideration must be given to its source, in particular to 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 …
121. 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 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”.
111. We are also mindful of what the AIT said in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049:-
“… By virtue of the disagreement between the parties in NA as to the relative value of particular sources, the December 2006 UNHCR Position paper in particular, the Court also felt it necessary to articulate in greater detail than previously its view of the relevant criteria that decision makers should apply to Country of Origin Information (COI). In the latter respect, it seems to us that, at least within the context of Article 3 jurisprudence, judges should now be assessing COI by the standards set out by the Court at paras. 132-135 of NA (which can be summarised as accuracy, independence, reliability, objectivity, reputation, adequacy of methodology, consistency and corroboration). Indeed, within the closely related context of asylum and humanitarian protection claims, very much the same standards have now become, by virtue of EU legislation, legal standards: see the Refugee Qualification Directive (2004/83/EC), Article 4(1), 4(3)(a) and 4(5)(c) and the Procedures Directive (2005/85/EC), Article 8(2)(a) and (b) and 8(3).” [5]
113. In MD (Ivory Coast) [2011] EWCA Civ 989, the Court had to decide whether the Upper Tribunal had erred in its treatment of information contained in a letter from a political officer in the Foreign and Commonwealth Office regarding checkpoints. Sullivan LJ said:
“Although the tribunal in the present case did not refer to NA, in my judgment it adopted the approach that is described in that case. It treated the political officer’s letter not as expert evidence but as akin to other kinds of country information. It considered whether it should attach weight to the fact that the Embassy had vouchsafed that one of its staff had furnished the evidence in good faith and concluded that it should. It considered the provenance [of] the information and most importantly it concluded in the final sentence of paragraph 242:
‘In the end, however, it is a matter of judgment as to the weight that should be attached to the material’”. [46]
“(a) relates to the country guidance issue in question; and
(b) depends upon the same or similar evidence.”
119. So far, we have considered the issue, on the assumption that the evidence that has been placed before this Tribunal is the same as was put before the ECtHR. A glance at Appendix 2 to this determination and at the synopsis of the Sufi & Elmi evidence mentioned above at [82] to [95] shows this not to be the case. Considerably more evidence was placed before us than was available to the ECtHR, including the oral expert evidence of two witnesses, whose views were tested under cross-examination.
(b) Article 3 and humanitarian conditions
124. We must now return to
the matter highlighted earlier, regarding what might be described as the
correct threshold for Article 3 in the context of the humanitarian situation
which exists in southern and central Somalia
, outside Mogadishu.
“278. 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... However, in N. v. the United Kingdom … 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’ ...
279. In the recent case of M.S.S. v. Belgium and Greece … 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).
280. 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.
282. 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 ... 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-Shabab’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 ...
283. 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).”
“42. … The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D. case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.
43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v United Kingdom and apply them in subsequent case-law which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.”
“366. In the instant case the Court has already found the applicant’s conditions of detention and living conditions in Greece degrading… It notes that these facts were well known before the transfer of the applicant and were freely ascertainable from a wide number of sources… It also wishes to emphasise that it cannot be held against the applicant that he did not inform the Belgian administrative authorities of the reasons why he did not wish to be transferred to Greece. It is established that the procedure before the Aliens Office made no provision for such explanations and that the Belgian authorities applied the Dublin Regulation systematically…
367. Based on these conclusions and the obligations incumbent on the States under Article 3 of the Convention in terms of expulsion, the Court considers that by transferring the applicant to Greece the Belgian authorities knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment.”
“264. It follows that, through the fault of the authorities, the applicant has found himself in a situation incompatible with Article 3 of the Convention. Accordingly, there has been a violation of that provision” (our emphasis).
129. Viewed in this light, the finding at [282] of Sufi and Elmi makes jurisprudential sense. If the predominant cause of the poor living conditions faced by a person is due to human actions in the State in question, rather than to naturally occurring phenomena, coupled with a lack of resources to deal with those phenomena, then the high threshold set by N need not be reached. As we understood Mr Eicke, however, the respondent considers this jurisprudence to be novel, rather than “clear and consistent”. It would, he said, in effect be possible in many cases to ascribe a State’s inability to tackle phenomena such as drought or HIV illness as due to the inefficiency, incompetence or corruption of the government of that State. To introduce such considerations would, therefore, be to undermine the settled jurisprudence in N v United Kingdom. It would, in any event, undermine the judgments of the House of Lords in N v Secretary of State for the Home Department [2005] 2 AC 296, which were binding on this Tribunal, irrespective of what the ECtHR might subsequently have held.
131. The real problem with
[282] of Sufi and Elmi, as we see it, is a factual one. Even on the
evidence available to the Court in that case, it is, with respect, difficult to
see how the actions of the “parties to the conflict” (which must mean the
TFG/AMISOM and Al-Shabab) can be said, by their indiscriminate methods of
warfare over a comparatively short period of time, to have caused a breakdown
of “social, political and economic infrastructures”. Anyone with experience of
Somali international protection cases over the past two decades will know that,
long before the arrival of these parties, there was precious little by way of
social, political and economic infrastructure to speak of in Somalia
. Furthermore, the evidence points to the current drought being the most severe in the past
60 years, which would in any event have been bound to have brought about a very
serious humanitarian situation, regardless of the present conflict, for those
whose existence depends directly on agriculture. In any event, whilst having
due regard to the conclusion of the ECtHR in Sufi & Elmi that, on the
evidence before that Court, the humanitarian crisis of 2011 was predominantly
due to the actions of the parties, we have concluded, for the reasons given
above, that the issue of whether or not that is so on the evidence before us is
a matter for this Tribunal to determine, as a matter of fact, by reference to
that evidence, ascribing to each item of it such weight as we see fit.
132. We shall examine that
evidence in due course in this determination (paragraphs 376 – 384). It
may, however, be helpful at this point to state that, whilst not the
predominant cause of the present humanitarian crisis in central and southern
Somalia
, the conflict between TFG/AMISOM and Al-Shabab, and the behaviour of
Al-Shabab in the areas which it controls, have been found by us to be
significant for two reasons. First, the fact that many of those fleeing the
consequences of the drought have seen fit to seek refuge in Mogadishu, at a
time when that city was the subject of ongoing armed conflict, is indicative of
the exceptional nature of the humanitarian crisis. Second, the nature and
actions of Al-Shabab, in particular denying aid from Western agencies (at
least, until very recently), has had a significant effect in aggravating an
already problematic situation. As a result, we have concluded that the
humanitarian position in southern and central
Somalia
is such that, as a
general matter, the case is properly to be viewed as an exceptional one,
which reaches the very high standard required in N v United Kingdom.
PART F
THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
Submissions and evidence
134. The UNHCR exercised
its right to intervene in the case of the present appeals, as it had done in HM
(Iraq: Article 15(c)). The Tribunal received written submissions from Tom
Hickman, Counsel, and Adam Smith-Anthony (then Adam Smith) of Baker &
McKenzie, each acting pro bono; oral submissions from Mr Hickman,
written evidence from Janice Marshall, Deputy Director in the Division of
International Protection at the Office of the UNHCR in Geneva; a witness
statement on the subject of information gathering which, because of its nature,
was by agreement made the subject of an order under rule 14 of the Tribunal
Procedure (Upper Tribunal) Rules 2008; the UNHCR’s Guidelines of July 2003 on
international protection: “Internal Flight or Relocation Alternative”; the UNHCR
Eligibility Guidelines for Assessing the International Protection Needs of
Asylum-Seekers from Somalia
(May 2010), with update to June 2011.
135. The basic purpose of
the UNHCR’s intervention in the present appeals was to explain why it was
considered that the UNHCR had submissions of value to make on the issue of
Article 15(c) of the Qualification Directive and why the UNHCR was of the view
that, at the present time, no-one could be returned to Somalia
from the United
Kingdom, compatibly with Article 15(c).
136. Having rehearsed the background to the Qualification Directive, and Article 15(c) in particular, the UNHCR’s submissions noted how the Court of Appeal in QD (Iraq) [2009] EWCA Civ 620 considered that the Directive not only gave effect to the 1951 Refugee Convention and non-refoulement obligations under the ECHR, but that Article 15(c) gave legal force to:-
“…the humanitarian practices adopted by many EU states, the UK included, towards individuals who manifestly need protection but who do not necessarily qualify under either Convention. Amongst these are people whose lives or safety, if returned to their home area, would be imperilled by endemic violence”.
138. The detailed
submissions of the UNHCR in relation to Article 15(c) are considered below
(Part I(1)(b) and (2)(b)). At this point, we shall concentrate on the UNHCR’s
submissions as to why the Eligibility Guidelines of 5 May 2010, together with their update of June 2011, should be followed by this Tribunal. The UNHCR
accepted that there had been occasions when Tribunals had expressed
reservations about UNHCR Reports; for example, NM (Somalia
) CG [2005] UKIAT 00076, on the basis that the UNHCR referred generally to the situation in
a country or to the need for international protection without specifically
addressing governing international and domestic norms. There was also thought
to be a lack of corroboration or evidential basis for some statements; and a
number of cases where the thoroughness or cogency of UNHCR Reports had been
challenged by the parties (LP (Sri Lanka) CG [2007] UKAIT 00076).
140. The fact that UNHCR has been called upon by the international community to pronounce upon issues of humanitarian protection going beyond persons fleeing persecution could be seen from calls from the General Assembly and the Economic and Social Committee of the UN, over the years, to the UNHCR to provide assistance to persons in need of international protection. This called into play paragraph 9 of the UNHCR Statute, whereby the High Commissioner is required to “engage in such additional activities … as the General Assembly may determine, within the limits of the resources placed at his disposal”. In practical terms, Mr Hickman submitted that this had extended the UNHCR’s mandate to cover forced displacement resulting from conflict, indiscriminate violence or disorder, in relation to persons, whether or not they were refugees within the 1951 Convention. UNHCR accordingly considered “that serious (including indiscriminate) threats to life, physical integrity or freedom resulting from generalised violence or events seriously disturbing public order are valid reasons for international protection under its mandate”. The significance of that mandate could be seen from the weight placed by the High Court and the Court of Appeal upon the reports of the UNHCR in, respectively, R (Saedi) v SSHD [2010] EWHC 705 (Admin) and QD (Iraq).
141. The reliance placed on
UNHCR positions had, in its turn, made it incumbent on UNHCR “to articulate
clear, concise and timely guidance on issues relating to eligibility for
refugee status and associated issues of subsidiary protection”. This had led
to adjustments being made to the content and format of UNHCR country-related
papers. UNHCR Reports accordingly now “routinely and where appropriate address
directly specific international and regional norms”, as in the Somalia
Eligibility Guidance.
(i) Eligibility Guidelines and updates: these contain factual descriptions of circumstances in individual countries as objectively assessed and corroborated by UNHCR, setting out UNHCR’s legal analysis and recommendations.
(ii) Safe third country papers: these contain UNHCR positions on the availability of protection in third countries.
(iii) Return advisories: these provide guidance on the return of people not found to be in need of international protection, following fair, efficient asylum procedures.
(iv) Country of origin papers: these summarise background country of origin information and may be externally commissioned by UNHCR, in which case that would be made clear. Such papers do not contain legal analysis or recommendation.
143. In NA v United Kingdom [2008] ECHR 616, the ECtHR recognised that States’ diplomatic missions would often be able to provide material that would be highly relevant to the Court’s assessment in the case before it, as regards conditions in a particular country in which that mission was situated. But:-
“It finds that the same consideration must apply, a fortiori, in respect of agencies of the United Nations, particularly their direct access to the authorities of the countries 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” [121].
“means that all factual statements made in Eligibility Guidelines (whether a footnote reference appears or not) are assessed to be reliable and are corroborated. It also means that the association of a factual statement in an Eligibility Guideline with a public source by a footnote reference does not mean that this reference is the only basis of that statement; in many cases it will represent a form of corroboration for the statement.”
147. The Eligibility
Guidelines of May 2010 were before the ECtHR in Sufi & Elmi, and
were also before us. They noted that over the past three years there had been
a consistent failure by all parties to respect basic principles of basic
international humanitarian law, as regards the conflict in central and southern
Somalia
. As a result, civilians were regularly caught in crossfire as well
as suffering from indiscriminate bombardments and grenade attacks in civilian
areas, together with roadside bombs. Hospital records indicated that there were
over 900 civilian casualties in Mogadishu in March and April 2010 and that
between 20 and 50 civilians were killed in Mogadishu each week. In addition to
all this, the report noted evidence that Somalis were fleeing due to fear of
persecution linked to the recent political and human rights situation in
Al-Shabab areas. As a result, UNHCR concluded that “any person returned to
central and southern
Somalia
would, solely on account of his or her presence
there, face a real risk of serious harm”.
148. The June 2011 update
report considered that developments since May 2010 had been “largely negative
in respect to the security of civilians in central and southern Somalia
”. This reiterated the earlier recommendations that “in the European context – a
situation of indiscriminate violence in a situation of internal armed conflict
in the meaning of Article 15(c) of the EU Qualification Directive” existed
[2]. Amongst the “developments” were the continued displacement of people due
to the conflict, with 85,000 displacements recorded between July and September
2010, mainly from Mogadishu. There were currently 1.46 million IDPs in
Somalia
, displaced primarily due to insecurity. In Mogadishu, regular exchanges of mortar
and artillery fire were made from, within and into civilian districts,
resulting in civilian casualties. TFG forces had “poor command and control”,
which led to fighting within the TFG, resulting in civilian casualties. In May
2011 there was a dramatic increase in children under the age of 5 being
admitted to hospital in Mogadishu with weapons related injuries “representing
35% of all weapons related injuries in two hospitals”.
151. In conclusion, the
update report stated that it “cannot be considered reasonable for any Somali,
regardless of whether the individual originates from southern and central Somalia
, Somaliland or Puntland, to relocate within or to southern or central
Somalia
”.
The Tribunal’s assessment
153. We are grateful to the
UNHCR for intervening in the present proceedings and providing evidence as to
the way in which the Eligibility Guidelines on Somalia
have been prepared, as
well as explaining the background to the decision to concentrate in those
Guidelines upon subsidiary forms of protection, including Article 15(c) of the
Qualification Directive and the process whereby lawyers on the UNHCR’s staff
sift the evidence, in preparing the Guidelines. We accept the evidence of Ms
Marshall regarding the process of “triangulation” and the attempt to ensure
that the evidence used is, in addition, assessed by reference to reliability.
An examination of the footnotes to the May 2010 Guidelines reveals that many of
the sources cited, such as Human Rights Watch, feature in the evidence before
this Tribunal.
154. In his oral
submissions, Mr Hickman did not contend that we, or other Tribunals in the same
position, should automatically follow the UNHCR’s view, which, he said, was
that Article 15(c) currently precludes returns to central and southern Somalia
. His submission was, rather, that we should have careful regard to the UNHCR’s
Guidelines. We have indeed done so. In his written submissions, however, he
said we should “accept the assessment” of the UNHCR in the Guidelines and their
update.
PART G
THE
UKBA’S SOMALIA
– REPORT OF FACT-FINDING MISSION TO NAIROBI (8-15 SEPTEMBER 2010
AND WILSON SOLICITORS’ EVIDENCE FROM NAIROBI (14-21 MAY 2011)
157. Two sources of
evidence from the parties call for special mention, as the significance of each
was challenged by the appellants and the respondent respectively. The UKBA’s
Country of Origin Information Service went on a Fact-Finding Mission to Nairobi in September 2010. The mission comprised Debbie Goodier, Senior Researcher in the
COIS, Eugenio Bosco, a Researcher in COIS, and Darren Forbes-Batey, First
Secretary (Migration) at the British High Commission, Nairobi. Fifteen persons
were interviewed, all except Captain Bulhan of the African Express Airways were
described in anonymous terms in the interview notes and report. The stated
purpose of the FFM was to obtain specific information on the then current
security and humanitarian situation in southern and central Somalia
, seeking
information in particular on what groups controlled each area in southern and
central
Somalia
; how easy it was to travel between different areas there; the
security situation; the human rights situation and conditions in IDP camps.
158. Wilson Solicitors’
Fact-Finding Mission took place in May 2011 and comprised James Elliott, (a
Partner), Joanna Hunt and Anab Nour, (Solicitors) with the firm, together with
Mr Toal of Counsel attending “in an advisory capacity”. According to Mr
Elliot’s letter of 15 June 2011, the persons to whom the team spoke comprised
those working for international organisations, NGOs, charities, journalists and
recent arrivals from Somalia
. Some were known through previous trips; others
were identified through web-based research. Eighteen people provided
statements. Except for Tanga Shumer of the
Somalia
NGO Consortium, the NGO
representatives were anonymised, as were the representative of the European
Union and a businessman. So too was the statement of a recent arrival from Mogadishu; but several other arrivals allowed their names to be published, as did a
journalist and a coordinator of the Gedo Peace Consortium.
“233. 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.
234. 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.”
163. In EM & Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), the Tribunal addressed criticisms of the UKBA’s FFM report on Zimbabwe [74] to [113]. The Tribunal in EM found that the value of the Zimbabwe FFM report lay not in any summary or analysis but solely in the views and opinions of the interviewees, as set out in the approved records of interview. That is the approach we have adopted in relation to the present UKBA FFM report and, indeed, to the Wilson Solicitors report (which does not contain any summary or similar “gloss”).
164. So far as anonymity is
concerned, it does not appear that the ECtHR in Sufi & Elmi was
referred to paragraph 5.1.8 of the EU Common Guidelines. Had this happened, it
would have been apparent to the Court that the way in which the interviewees
were described in the UKBA’s FFM report follows the recommendations set out in
the Guidelines. Furthermore, it appears to us to be axiomatic that a
representative of “an international NGO”, for instance, who wished to remain
anonymous because of security concerns, would at least be very likely to be
giving a first-hand account of conditions encountered in the course of the
NGO’s activities in Somalia
. As a result, and with respect to the ECtHR, we
have concluded that its assertion, that in the absence of information about the
nature of the source’s operations in
Somalia
, it will be “virtually impossible”
to assess reliability, is too sweeping. The important thing is not precisely
what a particular NGO is doing in
Somalia
, but what they observe about the
situation in that country whilst they are doing it. It is also noteworthy that Dr
Ingram’s approach to anonymity was not that a source should be discounted or
downplayed for wishing to be anonymous in the resulting report, but that
information obtained from people whose identity and organisational affiliation
could not be definitively ascertained by the researcher should not be included
in reports.
165. Mr Elliot’s letter of 15 June 2011 is pertinent in this regard:-
“A number of the statements
[in the Wilson Solicitors’ report] are anonymised. This is because the
representatives of NGO’s that we met were extremely concerned that if they were
identified then their staff working in Somalia
could be at risk. I would ask
the Tribunal to note the UNHCR’s similar concerns.
I can say that most of the organisations that we saw were large NGO’s the names of which will be known to people in the UK. A number of people that we saw said that they had been seen by the Home Office during previous Fact-Finding Missions. A number also said that they had been approached by representatives of the Foreign Office who had been making enquiries during the same week we were in Nairobi presumably to assist the respondent in preparing their evidence.”
168. This leaves the
respondent’s submissions on the statements of the individuals who had fled Somalia
for Kenya. We agree with the respondent that these statements need to be approached with
some degree of caution. The present and future intentions of the interviewees
are unclear. Unlike the representative of an NGO, there is an issue as to
whether such persons are telling the truth or motivated to paint a false
picture of their circumstances in
Somalia
, in order to aid a present or future
claim to refugee status. We have borne such considerations in mind when
assessing the evidence but, nevertheless, consider that the degree of detail in
at least some of the statements is such as to carry the ring of truth.
PART H
FURTHER LEGAL ISSUES
169. At this point, it is
probably convenient to examine a number of further general legal issues, raised
by the appeals, although, as will become clear, legal matters are by no means
confined to this Part of the determination. Several of these issues arise from
the evidence regarding the nature of Al-Shabab rule in the areas of south and
central Somalia
that the organisation controls. The issues are to a
substantial extent inter-related, as will be seen from the analysis which
follows.
(1) Al-Shabab and religion
171. As can be seen from Appendix 1 to this determination, the appellants asserted in evidence that, although Muslims, they did not share Al-Shabab’s interpretation of that religion. On their behalf, Mr Toal accordingly submitted that to return any of the appellants to an Al-Shabab area would result in a real risk of persecution by reason of religion, proscribed by the Refugee Convention.
“Article 9
Acts of persecution
1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must:
(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).
2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual violence;
(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);
(f) acts of a gender-specific or child-specific nature.
3. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.
Article 10
Reasons for persecution
1. Member States shall take the following elements into account when assessing the reasons for persecution:
…
(b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief;
…”
“Unless an asylum seeker’s present religious beliefs and practices accord with those of AS so that he or she has to adopt practices that are not his or her own and would have to do so in order to avoid being subject to persecution, the asylum seeker has [a] well founded fear of being persecuted for reason of religion.”
175. Article 18 of the International Covenant on Civil and Political Rights provides that:-
“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No-one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
…”
177. In Kokkinakis v Greece (1994) 17 EHRR 397 the ECtHR held that freedom of religion is “one of the most vital elements that go to make up the identity of believers and their conception of life” [31]. In the Law of Refugee Status, Professor Hathaway opines that “an individual’s right to religion implies the ability to live in accordance with a chosen belief, including participation in or abstention from formal worship and other religious acts, expression of views, and the ordering of personal behaviour”.
178. In HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 the House of Lords held that a gay man had a well founded fear of being persecuted for reason of his membership of a particular social group, if the evidence demonstrated that he would suffer persecution unless he concealed his sexuality and that he would in fact conceal his sexuality owing to that fear of persecution. Dyson SCJ said:-
“[110] The Convention must be construed in the light of its object and purpose, which is to protect a person who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’. If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his own country” (original emphasis).
185. As for Article 18 of
the ICCPR or “perhaps more relevantly, Article 9 ECHR”, such rights were, of
course, qualified in nature (Article 15 ECHR) and Mr Eicke relied on Mr Toal’s
oral statement, disavowing any suggestion that the appellants were submitting
that return to Somalia
would involve a “flagrant denial” of their rights under
Article 9 ECHR.
186. In reply, the
appellants emphasised that Article 10(1)(b) of the Qualification Directive was
not limited to the applicant’s belief but covered “any religious belief”.
Al-Shabab’s reason for imposing its requirements and restrictions was a
Salafist or Takfiri jihadist version of Islam, as described in an International
Crisis Group report of 2010. The Takfiri doctrine contended that modern day
Muslims had lapsed into a state of apostasy, building on the Salafi doctrine
that such persons were in a state of jahiliaah (pre-Islamic age of ignorance).
Takfiri ideas were said to have a long pedigree in Somalia
but beginning in
2009 a fanatic fringe had revived and instrumentalised such ideas in its
ideological war.
The Tribunal’s assessment
“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of particular social group or political opinion” (our emphasis).
(2) No Requirement to act illegally?
203. The payments with
which we are concerned, however, are of a different order. Given that
Al-Shabab is fighting to impose its rule over Somalia
, there must be a strong
likelihood that any money it demands of civilians is likely, at least in part,
to be used to fund its war against the internationally recognised government of
that country. Even here, however, we do not find that any likelihood a person
would make such payments must automatically be excluded from consideration in
assessing his or her international protection claim. Despite the scope of
section 63 of the 2000 Act, which provides that a person who acts outside the
United Kingdom in such a way as would have constituted an offence if done here,
shall be guilty of an offence, a foreign national who commits such an act
outside the United Kingdom and never submits to the jurisdiction of this
country will never be subject to its law. More particularly, as Mr Eicke
submitted, the consequence of taking such a stance towards Al-Shabab “taxes”
would suggest that (short of duress) anyone who had paid such taxes before
fleeing
Somalia
would be excluded from any form of international protection by
virtue of Article 12(2)(c) and Article 17(1)(c) of the Qualification Directive,
on the basis that there were grounds to suspect that they had committed acts
contrary to the purposes and principles of the United Nations.
204. Perhaps in the light of these problems, the appellants’ closing submissions adopted an approach which aimed to ground itself more firmly in established Refugee Convention jurisprudence. Mr Toal relied on Sepet v Secretary of State for the Home Department [2003] 1 WLR 856, which concerned the issue of whether a conscientious objector might be entitled to be recognised as a refugee. At [33] Lord Hoffman said:-
“While the demonstrator or objector cannot be morally condemned, and may indeed be praised for following the dictates of his conscience, it is not necessarily unjust for the State to punish him in the same way as any other person who breaks the law. It will of course be different if the law itself is unjust. The injustice of the law will carry over into its enforcement.”
(3) “Playing the game” – RT (Zimbabwe)
208. At [273] the Court
held that Al-Shabab was enforcing a particularly draconian version of Sharia
law that went far beyond the traditional interpretation of Islam in Somalia
, amounting to a repressive form of social control. Al-Shabab were concerned with
“every little detail of daily life”. Al-Shabab’s interest extended not only to
its inhabitants but also to those travelling through its areas [274]. At [275]
the Court recalled the evidence of a number of sources telling the Fact-Finding
Mission that areas controlled by Al-Shabab were generally safe for Somalis
provided they were able to “play the game” and avoid the attention of Al-Shabab
by obeying their rules. The Court, as we have seen, went on to hold that it
was unlikely 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-Shabab, either while travelling through or having settled in an
Al-Shabab controlled area”. The risk was even greater to Somalis who had been
out of the country long enough to become “westernised”. What punishment
transgressors would face was unpredictable but the evidence indicated that it
did not necessarily depend on the gravity of the infringement. The Court
accordingly concluded a returnee with no recent experience of living in
Somalia
would be at real risk of Article 3 harm in an Al-Shabab controlled area [277].
209. At this stage, it is necessary to deal in some detail with a case which featured in the appellants’ submissions regarding Al-Shabab and religion: RT (Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 1285. Like TM (Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 916, RT concerned the working through of the consequences of the judgments of the Supreme Court in HJ (Iran). At [25] and [27] the Court in RT appeared to have had no difficulty in accepting that the HJ (Iran) “point”, that a gay person should not be refused refugee status merely because he was likely to hide his sexuality and/or act “discreetly” to avoid persecution, applied also to a person “found to have genuine political beliefs”. The same must plainly apply to someone who genuinely has religious beliefs, who (as we have explained above) would suffer a flagrant denial of his right to such beliefs, if they were required to be hidden.
211. At [36] and [37] Carnwath LJ said:-
“36. It may be said that there is marked difference in seriousness between the impact of having to lie on isolated occasions about political opinions which one does not have, and the ‘long-term deliberate concealment’ of an ‘immutable characteristic’, involving denial to the members of the group their ‘fundamental right to be what they are’ (see per Lord Hope para 11, 21). We are not persuaded, however, that this is a material distinction in this context. The question is not the seriousness of the prospective maltreatment (which is not in issue) but the reason for it. If the reason is political opinion, or imputed political opinion, that is enough to bring it within the Convention. In this case, we are concerned with the ‘imputed’ political opinions of those concerned, not their actual opinions (see para 4 above). Accordingly, the degree of their political commitment in fact, and whether political activity is of central or marginal importance to their lives, are beside the point. The ‘core’ of the protected right is the right not to be persecuted for holding political views which they do not have. There is nothing ‘marginal’ about the risk of being stopped by militia and persecuted because of that. If they are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that seems to us to be covered by the HJ(Iran) principle, and does not defeat their claims to asylum.
37. Accordingly we accept the thrust of Mr Norton-Taylor's second submission, if not the precise wording. It is not a question of what the claimant is ‘required’ to do. However, if the Tribunal finds that he or she would be willing to lie about political beliefs, or about the absence of political beliefs, but that the reason for lying is to avoid persecution, that does not defeat the claim.”
“53. The problems posed by these cases are extreme. None of the appellants is a political refugee in the ordinary sense. In most contexts their claims to asylum would be hopeless. However, conditions in Zimbabwe, as they are described in RN are exceptional. The legality of these decisions must be decided by reference to the guidance in that case. Any changes since the period covered by that decision will be considered by the tribunal as part of its review of the country guidance. Applying RN we are satisfied that the appeals, except DM, should be allowed. Mr Norton-Taylor invited us to substitute our own decision in all or at least some of them. For the reasons given above, we agree in respect of RT, in which the claim to asylum will be allowed. We are not persuaded that course is open to us in the cases of SM and AM, where there were adverse findings of credibility. We shall accordingly remit those cases to the Upper Tribunal.”
217. There is a factual
issue about the extent to which Al-Shabab imposes and enforces by
disproportionate means, its requirements and restrictions over those within the
areas it controls. Again, we shall examine this in due course. But, assuming
the facts are as the appellants contend, then the position would, we consider,
be every bit as “extreme” as in RT (Zimbabwe). The consequences will
also be significant. Every person living under Al-Shabab control in central
and southern Somalia
, who could show that they do not genuinely adhere to that
organisation’s ethos, would have a good claim to Refugee Convention protection,
once outside
Somalia
(subject to internal relocation and exclusion clause
issues). The effect of RT (Zimbabwe), in comparison with Sufi &
Elmi, is to take the Refugee Convention well beyond the comparable ambit of
Article 3 ECHR protection (and, we might add, of subsidiary protection under
the Qualification Directive). We understand that RT (Zimbabwe) is under appeal to the Supreme Court. It is possible that that Court will prefer the
more restricted application of HJ (Iran), as found in the obiter
remarks of Elias LJ in TM (Zimbabwe). But, be that as it may, RT (Zimbabwe) represents the law and is binding on this Tribunal.
(4) Internal relocation and the burden of proof
“Article 8
Internal protection
1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.
2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.
3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.”
222. In Jasim v Secretary of State for the Home Department [2006] EWCA Civ 342 Sedley LJ said:-
“[16] The possibility of internal relocation is relevant to refugee and human rights claims because it may demonstrate that a fear of persecution or harm, though warranted by the applicant's experience in his place of origin, is not well-founded in relation to other parts of the state whose duty it is to protect him. But while the two issues – fear and relocation - go ultimately to the single question of safety, they cannot be decided in the same breath. Once the judge of fact is satisfied that the applicant has a justified fear of persecution or harm if returned to his home area, the claim will ordinarily be made out unless the judge is satisfied that he can nevertheless be safely returned to another part of his country of origin. Provided the second issue has been flagged up, there may be no formal burden of proof on the Home Secretary (see GH [2004] UKIAT 00248); but this does not mean that the judge of fact can reject an otherwise well-founded claim unless the evidence satisfies him that internal relocation is a safe and reasonable option.
[17] It is necessary to stress both adjectives - safe and reasonable. It is well established that relocation to a safe area is not an answer to a claim if it is unreasonable to expect the applicant to settle there. There may be no work or housing. He may not speak the language. Similarly, relocation to an area may be perfectly reasonable by these standards but unsafe, for example because of the risk of continued official harassment or - as in this case – revenge-seeking.”
223. In AH (Sudan) v Secretary of State [2007] UKHL 49, Lord Bingham referred to what he had said in Januzi v Secretary of State for the Home Department [2006] UKHL 5:-
“The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so… There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department [2001] 1 WLR 1891, para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls … or must depend on a fair assessment of the relevant facts [5].”
224. In AA (Uganda) v Secretary of State for the Home Department [2008] EWCA Civ 579 an Immigration Judge, on the reconsideration of an appeal following an earlier Immigration Judge’s determination, dismissed the appellant’s appeal because, although she had a well-founded fear of persecution in a particular area of Uganda, she had attended a particular church in the United Kingdom and the Immigration Judge saw “no reason why she could not also turn to the church in Uganda for similar support if the need arises”. That finding was categorised as perverse, not being based on relevant (indeed) any evidence [12], [40] and [54].
“266. 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), Chahal v. the United Kingdom, 15 November 1996, § 98, Reports of Judgments and Decisions 1996 V and Hilal v. the United Kingdom, no. 45276/99, §§ 67 – 68, ECHR 2001 II). 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 …). 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 ….”
(5) Legal issues regarding appellant MW’s appeal
(a) Effect of Beoku-Betts
229. As is recorded in Appendix 1, when Appellant MW was asked what she would do if she had to choose between having her daughter subjected to FGM and “being called names”, she replied that she would have her daughter circumcised.
230. In his closing
submissions, Mr Eicke asserted that, even if it were possible to establish that
the daughter would be entitled to international protection on the basis of the
risk to her of being subjected to FGM, that did not inevitably or necessarily
translate into refugee status for appellant MW where, by virtue of her British
citizenship, the daughter was not required to accompany her mother to Somalia
,
so as to be exposed to risk, but could remain with the father in the United
Kingdom particularly since, on appellant MW’s own evidence, the latter was
likely to be the perpetrator of the very harm against which protection was
sought.
231. The respondent submitted that the appeal of appellant MW was materially different from the position in FM (FGM) Sudan CG [2007] UKAIT 00060, as in that case the appellant and her children were citizens of Sudan who would all inevitably have been returned to Sudan together and the risk of FGM to the daughters arose not from the mother herself but from members of the extended family taking advantage of any temporary absence of the mother to subject the daughters to FGM. It was submitted that the case law “understandably relied on by [appellant MW] in relation to Article 8 ECHR can have no bearing on this question which, by definition, now arises solely in the context of the [status] claim under the Refugee Convention or Article 15(b) of the Qualification Directive”.
232. We remind ourselves that that last submission relates to the giving of notice by appellant FM under rule 17A of the Tribunal Procedure (Upper Tribunal) Rules 2008, that she wished to pursue her appeal under section 82 of the 2002 Act on Refugee Convention grounds, as permitted by section 104(4D) of that Act. The respondent’s acknowledgement that, in addition, appellant MW can pursue her appeal by reference to the Qualification Directive (subsidiary protection) is in response to the Court of Appeal judgments in FA (Iraq) [2010] EWCA Civ 696, which concerned the directly comparable situation under section 83 of the 2002 Act.
233. For appellant MW, Ms Short relied upon Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 in support of her submission that, regardless of the daughter’s citizenship and the grant of leave to appellant MW, the daughter’s own human rights (Article 3) were directly engaged in MW’s continuing appeal. In Beoku-Betts, the House of Lords found that, in an Article 8 appeal, the rights of the appellant’s family members under that Article were justiciable in determining the outcome of the appellant’s appeal.
235. Ms Short was, however, on much stronger ground in relying on the Court of Appeal judgment in Saad & Others v Secretary of State for the Home Department [2001] EWCA Civ 2008. In that case, the Court stressed the fact that “all asylum appeals under section 69 of the 1999 Act … are hypothetical in the sense that they involve the consideration of a hypothesis or assumption, which is reflected in the wording of each of the subsections of section 8, namely that the applicant’s removal or requirement to leave (as the case may be) ‘would be contrary to the United Kingdom’s obligations under the Convention’ [our emphasis]” [58].
237. The hypothesis which a
tribunal is required to make, in determining the entitlement of a person to
refugee status or other international protection, is, however, not limited to
assuming the return to the country of origin only of the appellant. On the
contrary, on a daily basis, judicial fact-finders determine appeals by
reference to the hypothetical return along with the appellant of other persons,
whether or not these are British citizens. There is, accordingly, no
impediment to appellant MW pursuing her claim to be entitled to refugee status
or subsidiary protection, on the basis that, if compelled to return to Somalia
,
it is reasonably likely that she would take her children, including her
daughter, and that she would suffer serious harm in the form of anguish, in the
event that her daughter was subjected to FGM.
(b) Refugee protection for the persecutor?
PART I
ASSESSMENT OF THE GENERAL EVIDENCE
Introduction
241. The recent history of Somalia
is a catalogue of misery; a striking example of the human cost of a failed State.
The warlordism and clan-related violence that followed the fall of the Barre
regime in the early 1990s proved to be immune to international intervention and
was curbed only by the emergence of other forms of conflict involving,
variously, the Union of Islamic Courts and the Ethiopians, and, now, Al-Shabab
and AMISOM, with the Transitional Federal Government making its (often ineffectual)
mark. On top of all this, the climate in the Horn of Africa turned cruel, with
what is now recognised as the most serious drought for 60 years, leading to the
present famine conditions and resulting humanitarian crisis. One thing that
has apparently not changed in all this time is the keenness of Somalis to
inflict FGM on their daughters, with estimates of the prevalence of the
practice being well over 90%.
242. And yet, in the light
of all this, we have heard and read evidence that might be thought somewhat
surprising. Both international and domestic air travel continues using Mogadishu Airport on a daily basis, without significant disruptions. Minibuses travel
across southern and central Somalia
, including to Kenya. All kinds of
electrical and technological goods are available in Bakara Market, Mogadishu. The mobile telephone system not only continues to function but provides an
instantaneous means of conveying money internationally, even to the remotest
areas. Businesspeople continue to operate in southern and central
Somalia
, in some cases with a degree of financial success which would be impressive
anywhere. As well as businesspeople flying in and out of Mogadishu International Airport, there are visitors, including Somalis from the Diaspora, coming for a
variety of purposes, including – grotesquely – for the purpose of having FGM
inflicted on their female children. Much of this evidence comes from the
appellants’ own witnesses, Laura Hammond and Tony Burns.
244. Mr Burns, who leads a
major NGO in Somalia
and, although based in Australia, frequently visits Mogadishu, was said by Mr Eicke to be the provider of “raw data” rather than analysis. In
some cases that data was based on anecdotes he heard from staff members.
245. The respondent’s
criticisms of Dr Mullen’s evidence are of marginal significance. Dr Mullen has
given oral evidence to the AIT on previous occasions (HH [301]), when
the Tribunal formed a “generally positive impression” of his evidence. The
fact that his expertise on Somalia
has given him a certain viewpoint is
apparent but, we find, not such as seriously to affect the value of his
evidence to us.
246. We agree with the
criticisms made of Dr Hammond and also consider that it would have been helpful
had her report drawn upon the recent publication of the report “Cash and
Compassion: The Role of the Somali Diaspora in Relief, Development and Peace-Building”
(2011), of which she was the lead author and which painted a somewhat different
picture of Diaspora Somalis, both in relation to providing aid and returning to
Somalia
to assist in that regard, than was evident from her report prepared for
these proceedings. We nevertheless have concluded that significant weight can
still be attached to her evidence.
248. In early August 2011,
after the conclusion of the eight days of hearing the appeals, the BBC and
other news organisations reported that Al-Shabab had withdrawn from its
military positions in Mogadishu. The Tribunal issued directions to the parties
to liaise with a view to placing before the Tribunal agreed proposals for the
production of written evidence regarding this issue and written submissions as
to the conclusions which the Tribunal was invited to draw from that evidence.
The parties have done so, although the timescale has proved to be slightly more
protracted than was originally envisaged. In the event, both the appellants and
the respondent have submitted evidence not just on the position in Mogadishu but on other issues, including the military and humanitarian situations in
central and southern Somalia
, up to late September 2011. We have taken account
of all of the most recent admitted evidence and the accompanying submissions.
249. With these
introductory remarks, we turn to our assessment of the general evidence.
Although we have for this purpose separated Mogadishu from the rest of southern
and central Somalia
, there is, as will be seen, some overlap in the issues
regarding each.
(1) Mogadishu
Evidence and submissions
250. The starting point for our assessment is the country guidance set out in AM & AM, which was:-
“There is now an
internal armed conflict within the meaning of international humanitarian law
(IHL) and Article 15(c) of the Refugee Qualification Directive throughout
central and southern Somalia
, not just in and around Mogadishu. The armed
conflict taking place in Mogadishu currently amounts to indiscriminate violence
at such a level of severity as to place the great majority of the population at
risk of a consistent pattern of indiscriminate violence. On the present
evidence Mogadishu is no longer safe as a place to live in for the great
majority of returnees whose home area is Mogadishu”.
254. According to the UNHCR
(British High Commission, Nairobi letter of 1 June 2011, figures for the whole
of Somalia
indicated 1,286 killings in 2009 and 1,396 in 2010, with rapes
rising to 709 from 463 and other physical assaults rising to 2,046 from 1,597.
The COIS Report refers (again across
Somalia
) to 5,000 fatalities in 2010, of
whom 20% were children. Congressional Research Service estimated 22,000
civilian deaths in the two years prior to December 2010, whilst the US State
Department estimated 2,000 civilians killed across
Somalia
in 2010, of which
918 were in Mogadishu, together with 5,184 civilian injuries in Mogadishu alone. A Landinfo report of August 2010 referred to approximately 600 people
killed in Mogadishu in the first seven months of 2010 in fighting, suicide
attacks, roadside bombs and stray bullets, of which 250 were explicitly
described as civilians. Interpolating from the US State Department figure of
2,000 civilians killed and 6,000 injured in 2010, the respondent submitted that
this equated to only some 2.7% of all deaths in
Somalia
being civilian
casualties caused by the armed conflict. Moving to the first two months of
2011, and taking figures of the International Institute for Strategic Studies,
Armed Conflict Database that at least 224 people were killed and another 227
wounded, with more than half those killed being civilians, the respondent
submitted that even if all the casualties were assumed to be civilians this
would amount to an annualised figure of 1,120 killed and 1,135 wounded, which
was lower than the figures referred to for 2010 or, indeed, the figures
referred to in AM & AM for 2008. Additionally, two major hospitals
in Mogadishu had recorded 1,756 conflict related injuries since January 2011
(OCHA Humanitarian Overview April 2011), which would give an annual figure of
5,258 injuries in Mogadishu and not confined to civilians.
260. According to COIS
2.44, Somalia
was said to have maintained a “healthy informal economy, largely
based on livestock, remittance/money transfer companies, and
telecommunications” with agriculture being the most important sector. Hotels
continued to operate, albeit supported with private security militia. A mobile
phone company had invested US$10 million since 2000 and
Somalia
had better internet connectivity than several other African countries (COIS 2.07). This
evidence was supported by Mr Burns, who said that any IT found in the UK could also be found in Mogadishu. Dr Hammond’s Cash and Compassion report described the
significant contributions made by the Somali Diaspora in terms of cross-clan
support for IDPs, investment in schools, clinics, hospitals etc. Mr Burns
admitted in oral evidence that businesses continued to operate in Mogadishu, some moving from Bakara Market to the Afgoye Corridor and other parts of the
capital. He said the biggest businessmen in
Somalia
operated from out of the
country (that is to say, those with turnover of US$50 million to US$100
million), those with a turnover of US$1 million to US$10 million apparently
made visits to
Somalia
, whilst those worth US$50,000 to US$1 million continued
to be present in the country, paying taxes both to the TFG and, where
necessary, Al-Shabab. Dr Hammond confirmed that employment opportunities in
the informal sector existed in Mogadishu, such as at the port directly
accessible from Hamar JaabJab. Mr Burns considered that appellant FM could
work in some way, for example by selling fruit in that district. In general,
according to the British High Commission letter, many people in
Somalia
in one
way or another “do get by”, with many relying on small scale petty trade and
casual employment. Only children from the poorest households worked.
261. Dr Hammond’s “Cash and
Compassion” report described the excellence of telecoms in Somalia
, which facilitated the Hawala system, whereby Somali Diaspora could send money to family
members displaced by war within a day or two of their dislocation, even to IDP
camps. This had led Al-Shabab to ban mobile phones receiving such remittances
because Al-Shabab could not get hold of the money themselves (Cash and
Compassion, page 42).
262. There was a good deal
of evidence to the effect that organisations were able to operate in Mogadishu, providing food and other humanitarian assistance (e.g. OCHA Somalia
Weekly
Humanitarian Bulletin March/April 2011; Nairobi Evidence: Representatives of
INGO). The British High Commission letter set out a non-exhaustive list of
organisations providing such help. Thus, COIS 27.17 reported food assistance
continuing to sustain 250,000 people a month in Mogadishu.
263. However, SAACID –
Drought in Somalia
(May 2011) reported that the city of Mogadishu had “little
capacity to cope with” new families arriving from the drought-stricken
countryside. A sample in January 2011 conducted in Mogadishu found that more
than 70% of the population have been displaced at least once in the past two
years, primarily from conflict. “Yet, communities in Mogadishu have opened
their hearts to the new rural families, who are perceived as being even more
desperate than families residing in Mogadishu.” Mr Burns confirmed that other
TFG-controlled districts had agreed to assist IDPs arriving “once the numbers
of new arrivals had grown too high in Hamar Weyne and Hamar JaabJab”.
266. Dr Hammond suggested
in oral evidence that areas under TFG/AMISOM control in Mogadishu were not
genuinely under such control and that Al-Shabab and other militias moved into
some areas at night. The respondent questioned this evidence. An ORBS poll of
November 2010 indicated that, of women in Mogadishu, just under half were
housewives and the other half comprised 2% business owners, 9% informal
employment, 9% working part-time, 6% working full-time, 13% students and 13%
unemployment. The majority of those working for Mr Burns’ SAACID organisation
were women and a thousand women were employed by the UN (UNSC April 2011). In Mogadishu and elsewhere, women who had lost male breadwinners as a result of the armed
conflict assumed an economically active role, which included setting up small
businesses (ICRC – Annual Report 2010 – Africa). According to Joakim Gundel,
based on working and interviews in Somalia
and studies of the country from
outside it, there had been changes in the clan system in Mogadishu over the
past eight years, whereby the Reer Hamar community was no longer subject to the
kind of targeted violence by major warring clans, albeit that they were still
subject to some discrimination. Mr Burns did not suggest that members of
minorities encountered particular problems when migrating to Mogadishu. He
said that rural people travelled to Hamar Weyne and Hamar JaabJab, where most
had clan connections. Mr Burns used the minority/majority terminology in the
sense of whether particular clans were numerically in the majority or minority,
rather than by reference to noble clans and traditional minorities. Dr
Hammond’s evidence was to the effect that persons who had once been powerful
might not be powerful at the present time as the situation was “evolving”. The
respondent submitted, however, that this did not support a conclusion that clan
relations were no longer relevant.
268. Reintegration support
was available for failed asylum seekers who returned to Somalia
from the United Kingdom voluntarily. The respondent relied on the finding at [178] of TK
(Tamils, LP updated) Sri Lanka (REV1) CG [2009] UKAIT 00049, where it
was held that there was “no basis for suggesting … that if required to return
the appellant would not seek to avail herself of such a package”. The expression
“voluntary” ought, therefore, to be read in that light and a finding made that,
if returned, the appellants would avail themselves of financial assistance,
including up to £1,500 in order to help the person concerned settle back in
their country, including – where appropriate – setting up a business.
Caseworkers were available to assist in contacting friends and family in the
country of return and planning onward travel (R/3/14/1520-1525).
271. The ECtHR concluded at
[246] that “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 a displacement of hundreds of thousands of people”. We were
urged to adopt the same approach and to continue to recognise, as did the
Tribunal in AM & AM, that there was a likelihood of considerable
underreporting. This was because the UN Office for the Coordination of
Humanitarian Affairs (August 2010) had stated that there was no systematic
gathering of data about conflict related deaths and injuries in Somalia
; the
reporting by individuals and institutions, such as hospitals and the Mogadishu
Ambulance Service, upon which the data were based, necessarily had a limited
impartial reporting capacity, as could be seen from the evidence from Lifeline
Africa Ambulance Service’s spokesman that “many people are buried where they
die and many injured are looked after by relatives unable to get them to
hospital” (IRIN Report, December 2010); but in the nine months January to
September 2010, three Mogadishu hospitals reported 5,485 weapons-related
injuries (UN, September 2010); that any downward trend in casualty figures was
indeed due to the depopulation of Mogadishu, such that the figures by
themselves were not a reliable basis for assessing the intensity of violence
and the extent to which it gave rise to a risk of serious harm to people still
in the city; that a press statement of 31 May 2011 from the World Health
Organisation indicated that the main causes of death among under 5’s were burns,
chest injuries and internal haemorrhaging caused by blast injuries, shrapnel
and bullets; that of the 1,590 reported weapons-related injuries in May 2011,
46% related to children under the age of 5; and that a spokesman for Peaceline
told IRIN that numbers would be even higher, if one took into consideration
that many families were unable to access hospitals and therefore treated
children at home as best they could.
280. The supposed distinction, sought to be drawn by the respondent, between Al-Shabab targeted and indiscriminate violence was, the appellants contended, unjustifiable in the light of HM (Iraq) CG [2010] UKUT 331 (IAC), where the Upper Tribunal rejected as unhelpful the proposal that a distinction should be drawn between a real risk of targeted and of incidental killing of civilians during an armed conflict. In any event, the appellants submitted, Al-Shabab had, in fact, often used what were plainly indiscriminate methods in order to kill their enemies, such as could be seen from the roadside bomb intended for a minister’s car, which killed five other people (21 December 2009), the attack on the Muna Hotel in Mogadishu on 24 October 2010 when, as well as those targeted, an 11 year old shoeshine boy and a woman selling tea were also killed; eight civilians killed by a roadside bomb intended for AMISOM troops on 31 August 2010; at least 70 killed following a botched suicide bomb attack on government facilities on 5 March 2011; and the bombing of the house of a police officer in Wadajir district, which caused five deaths on 6 April 2011.
(a) Daynile – civilians killed and wounded on 16 and 24 November 2009, 21 July 2010, 67 wounded in districts including Daynile on 26 March 2011 and ‘massive shelling’ of Daynile on 9 April 2011, killing nine civilians and injuring 26;
(b) Hamar JaabJab – woman and two children killed by a mortar on 20 December 2009; four civilians killed and ten wounded on 13 January 2010; ten civilians wounded by heavy artillery on 14 June 2010; eleven people, including civilians killed and 40 injured by suicide bombing on 21 February 2011; two boys killed after explosive device with which they were playing blew up, 23 April 2011; one civilian killed by crossfire on 31 May 2011; ten civilians wounded by fighting between TFG and police on 13 June 2011;
(c) Waaberi – three civilians killed by landmine on 18 April 2010; several civilians wounded by retaliatory fire on 11 September 2010; civilians wounded during clash between rival TFG soldiers on 13 March 2011; five killed and six wounded by similar fighting on 26 April 2011; seventeen civilians killed and seventeen wounded by mortar attack on 25 May 2011;
(d) Hamar Weyne – mortar attack killing two civilians and injuring three on 20 May 2010; eleven people including three children killed by a mortar attack on a hospital on 11 September 2010; roadside bomb intended for Finance Ministry official killing five people, 4 July 2010; ten schoolchildren injured by mortar landing on their school on 19 July 2010; Al-Shabab suicide bombing at Muna Hotel killing 31, 24 August 2010;
(e) Yaaqshid – three civilians killed by artillery barrage on 27 March 2011; four civilians killed by bombardments on residential areas on 2 June 2011;
(f) Karaan – 22 killed and 37 wounded in clashes on 24 October 2010; three killed and two injured on 28 October 2010 (it is unclear whether all or any of these were civilians);
(g) Wadajir/Medina (the so-called ‘green zone’) – four civilians wounded by AMISOM firing on 25 January 2011; sixteen killed and 56 injured (mostly civilians) shopping at Benadir Market as a result of fighting between TFG police and soldiers on 3 February 2011; five injured when a police officer’s house was bombed on 6 April 2011; Medina Hospital hit by mortar rounds in April 2011; two civilians wounded when TFG soldiers clashed among themselves on 26 June 2011.
290. According to Somalia
Report of 31 August, Al-Shabab are maintaining a covert presence in Mogadishu,
where they seek to rely on fear instilled by a policy of executing
“collaborators” in order to deter civilians from informing on them. The
organisation was attempting to compensate for reduced military and political
capacity by terrorising the civilian population. Thus, on 21 August, an Al-Shabab
leader issued a fatwa ordering the killing of anyone opposed to Al-Shabab,
including those loyal to the TFG. According to
Somalia
Report, the leader said
that anyone who asserted Al-Shabab was defeated would be “silenced (will be
shot in the head)” and that, whilst Al-Shabab used to protect civilians “from
now on we shall not spare them, whoever is supporting the infidels have the
right to die”. On 23 August three males were executed in Mogadishu, one being
accused of working for Kenyan intelligence and the others of working and spying
for the TFG. Two days later, a report on Shabelle.net described the
decapitated body of a Somali boy who had been abducted being left at the pasta
factory in north Mogadishu. The same day, there was a report that Al-Shabab
had kidnapped two men in Garasbaley and that the beheaded body of one of them
was found in what was described as the Al-Shabab controlled area of Suqaholaha,
where five other headless bodies had been found in recent days.
292. The appellants’ most
recent evidence contained a number of reports, said to relate to fighting
between different armed groups within or associated with the TFG. On 5 August 2011 at least four civilians were killed in Hamarweyne when forces clashed and on
the same day eleven were said to have been killed and twenty wounded as Somali
soldiers looted food at Badbado Camp for IDPs. On 20 August three were killed
and six were wounded as soldiers in Dharkanley fought amongst themselves and
the following day there was further fighting involving TFG military and police
in Wadajar. There were also reports of rape by TFG soldiers in IDP camps in Mogadishu, as well as further reports of looting. A Somalia
Report of 29 August described
an increase in the number of checkpoints and roadblocks in Mogadishu, following
the withdrawal of Al-Shabab.
293. As for the
humanitarian situation in Mogadishu, on 20 July famine was declared in a number
of further areas of central and southern Somalia
, including in the IDP camps of
Mogadishu (UN Secretary General’s Report). During July and August 100,000
IDPs fleeing from drought and famine arrived in Mogadishu, joining the 370,000
people already displaced to the city.
302. The UNHCR visit to Mogadishu on 14 September was described as passing buildings destroyed by warfare or
damaged by weaponry. There was, however, “a lot of life on the streets and
many shops doing a brisk business – encouraging signs of a city attempting to
recover after years of conflict and chaos”. The UNHCR was concerned about the
spread of diseases such as cholera in the IDP settlements. The meeting
“expressed its deep sympathy to Somalia
in the face of the severe drought and
famine afflicting the country”.
303. A Somalia
Report of 25 September described life in Mogadishu as “slowly returning to normal following
the withdrawal of the militant group Al-Shabab”. TFG/AMISOM had “seemingly
succeeded in keeping the Islamist fighters at bay, at least for now”. A kiosk
owner in Mogadishu said that he was “receiving a good number of customers as
people can walk any time of the day through into the night. I can say this is
my new life after eight years of living in agony.” Landinfo reported that
electricity worked in cities for those who could pay and that “23% of the
residents of Mogadishu are online or worked daily”. The same organisation
reported that although random detention and harassment of civilians occurred in
government controlled areas, this was more limited than in 2007-2008. Amnesty
International’s briefing acknowledged that indiscriminate artillery attacks had
reduced. It was unclear whether AI’s figures for those treated in Mogadishu hospitals in August 2011 for weapons related injuries included combatants.
308. The loss to Al-Shabab
of Bakara Market was, according to the respondent, significant in that it had
been the “financial hub of the movement” ([48] of later submissions). The
second largest market in Mogadishu, Sukh Ba’ad in Yaqshid district, held for
the last two years by Al-Shabab, had been captured by AMISOM and was officially
reopened for business in early September. This market also had been “an important
revenue stream” for Al-Shabab (Somalia
Report).
319. Dr Hammond concluded
that it was “too soon to know for sure what the significance of Al-Shabab’s
withdrawal from parts of Mogadishu will mean in the long term” and that there
have been “many false dawns in the past, occasions when analysts and policy
makers have had their hopes that the tide may finally be turning in Somalia
only to … be bitterly disappointed when the violence grew more, rather than
less, destructive. However, for the moment, the situation in
Somalia
remains precarious and from my perspective unsafe for those who return to
Somalia
, particularly if they lack armed protection.”
320. On 26 September 2011 Amnesty International released a briefing paper entitled “Somalia
: The Humanitarian and Human Rights Catastrophe”. The first part of the Briefing
concerns what AI describe as the “desperate humanitarian situation. In July
and August this year, the United Nations declared famine in six areas of
southern and central
Somalia
: Bakool, Bay, Lower Shabelle, Middle Shabelle, the
Afgoye Corridor displaced persons settlement and the Mogadishu displaced
community.”
321. As regards the
humanitarian situation in Mogadishu, AI stated that since the beginning of 2011
civilians’ lives in Mogadishu have been threatened by a combination of
fighting, obstacles to the delivery of humanitarian aid and the deterioration
of the humanitarian situation. Although the “much publicised withdrawal of
Al-Shabab armed factions from Mogadishu on 6 August 2011 has raised hopes”, AI considered the humanitarian situation in the city to remain “dire.
Humanitarian operations are being scaled up in Mogadishu but aid does not reach
all those in need.” During August 2011, 3092 out of the 7109 cases of acute
watery diarrhoea in south and central Somalia
occurred in the Banadir region of
Mogadishu. In September, the Banadir Hospital reported 296 cases, 60% of
which concerned children under 5 years. The following week, the same hospital
reported 274 cases, with 72% involving such children.
The Tribunal’s findings
327. Although it is
conventional, in assessing an individual’s entitlement to international
protection, to begin with the Refugee Convention, moving on to consider
subsidiary protection under the Qualification Directive only if entitlement to
refugee protection is not found, we have decided that this would not be the
most appropriate method of presenting our findings on the general evidence. The
way in which the appeals were argued, the weight of the evidence and the
significance of Sufi & Elmi all pointed, as regards Mogadishu, towards an analysis that concentrated upon Article 15(c) and Article 3 of the
ECHR. So far as the position is concerned elsewhere in southern and central
Somalia
, the Refugee Convention loomed much larger, and is engaged in the case
of several of the appellants; but we have decided to adopt the same order of
analysis of the general evidence, partly for consistency, but mainly because
the significance of RT (Zimbabwe) in the case of those at risk of living
under Al-Shabab is best appreciated once one has examined the position in terms
of Article 3.
(a) Article 15(c)
“a. The Article seeks to elevate the state practice of not returning unsuccessful asylum seekers to war zones or situations of armed anarchy for reasons of common humanity into a minimum standard (QD at [21]).
b. The scope of protection is an autonomous concept distinct from and broader than Art 3 protection even as interpreted by the European Court of Human Rights (ECtHR) in NA v United Kingdom (Elgafaji at [33]-[36]; QD at [20], [35]); HH and Others) at [31]).
c. It is concerned with ‘”threat .. to a civilian’s life or person” rather than to specific acts of violence .. the threat is inherent in a general situation of .. armed conflict…The violence that gives rise to the threat is described as indiscriminate, a term which implies that it may extend to people irrespective of their personal circumstances’ (Elgafaji [34]).
d. The Article is intended to cover the ‘real risks and real threats presented by the kinds of endemic acts of indiscriminate violence - the placing of car bombs in market places; snipers firing methodically at people in the streets - which have come to disfigure the modern world’. It is concerned with ‘serious threats of real harm’ (QD at [27] and [31]).
e. ‘Individual’ must be understood as covering harm to civilians irrespective of their identity where the degree of indiscriminate violence characterising the armed conflict taking place reaches such a high level that substantial grounds are shown for believing that a civilian …would solely on account of his presence on the territory… face a real risk of being subjected to the serious threat’ (Elgafaji [35]).
f. ‘The more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required’ (Elgafaji [39]).
g. A consistent pattern of mistreatment is not a necessary requirement to meet the real harm standard. ‘The risk of random injury or death which indiscriminate violence carries is the converse of consistency’ (QD at [32]).
h. There is no requirement that the armed conflict itself must be exceptional but there must be ‘an intensity of indiscriminate violence great enough to meet the test spelt out by the ECJ’ and this will self evidently not characterise every such situation (QD at [36]).
i. ‘The overriding purpose of Article 15(c) is to give temporary refuge to people whose safety is placed in serious jeopardy by indiscriminate violence, it cannot matter whether the source of the violence is two or more warring factions (which is what conflict would ordinarily suggest) or a single entity or faction’ (QD at [35]).
j. ‘Civilian’ means all genuine non-combatants at the time when the serious threat of real harm may materialise (QD [37]).”
“31. … it is appropriate to compare the three types of ‘serious harm’ defined in Article 15 of the Directive, which constitute the qualification for subsidiary protection, where, in accordance with Article 2(e) of the Directive, substantial grounds have been shown for believing that the applicant faces ‘a real risk of [such] harm’ if returned to the relevant country.
32. In that regard, it must be noted that the terms ‘death penalty’, ‘execution’ and ‘torture or inhuman or degrading treatment or punishment of an applicant in the country of origin’, used in Article 15(a) and (b) of the Directive, cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm.
33. By contrast, the harm defined in Article 15(c) of the Directive as consisting of a ‘serious and individual threat to [the applicant's] life or person’ covers a more general risk of harm.
34. Reference is made, more generally, to a ‘threat ... to a civilian's life or person’ rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of ‘international or internal armed conflict’. Lastly, the violence in question which gives rise to that threat is described as ‘indiscriminate’, a term which implies that it may extend to people irrespective of their personal circumstances.
35. In that context, the word ‘individual’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the Directive.
36. That interpretation, which is likely to ensure that Article 15(c) of the Directive has its own field of application, is not invalidated by the wording of recital 26 in the preamble to the Directive, according to which ‘[r]isks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm’.
37. While that recital implies that the objective finding alone of a risk linked to the general situation in a country is not, as a rule, sufficient to establish that the conditions set out in Article 15(c) of the Directive have been met in respect of a specific person, its wording nevertheless allows by the use of the word ‘normally’ for the possibility of an exceptional situation which would be characterised by such a high degree of risk that substantial grounds would be shown for believing that that person would be subject individually to the risk in question.
38. The exceptional nature of that situation is also confirmed by the fact that the relevant protection is subsidiary, and by the broad logic of Article 15 of the Directive, as the harm defined in paragraphs (a) and (b) of that article requires a clear degree of individualisation. While it is admittedly true that collective factors play a significant role in the application of Article 15(c) of the Directive, in that the person concerned belongs, like other people, to a circle of potential victims of indiscriminate violence in situations of international or internal armed conflict, it is nevertheless the case that that provision must be subject to a coherent interpretation in relation to the other two situations referred to in Article 15 of the Directive and must, therefore, be interpreted by close reference to that individualisation.
39. In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.”
330. In Sufi & Elmi, the ECtHR said:-
“225. 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).
226. 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 [sic]. 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.”
“Nor, however, has the judgment [in Elgafaji] introduced an additional test of exceptionality. By using the words “exceptional” and “exceptionally” it is simply stressing that it is not every armed conflict or violent situation which will attract the protection of art 15(c), but only one where the level of violence is such that, without anything to render them a particular target, civilians face real risks to their life or personal safety” [25].
336. The appellants contended that the AIT in GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 were wrong to hold at [71] that relevant forms of harm protected against by Article 15(c) should not extend to questions of “dignity”. Reliance was placed on Recital (10) to the Qualification Directive:-
“(10) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.”
339. On the state of the
evidence as it was in July 2011, before Al-Shabab’s withdrawal from Mogadishu, we have concluded that, for most returnees from the United Kingdom, having to
live or stay for a significant period of time in Mogadishu would have exposed
them to Article 15(c) risk. Whilst we accept the respondent’s evidence that
the CIA World Fact Book gives a “crude death rate” for Somalia
at June 2011 as
14.87 per thousand, which is lower than various African countries including
Nigeria and South Africa, and also lower than Russia, the statistical evidence
regarding Mogadishu, together with the evidence regarding the behaviour of the
combatants, indicated plainly that the armed conflict was one which affected
the lives of civilians in the way encompassed by Article 15(c). That was so,
notwithstanding the evidence which indicated that most civilian casualties
arose in and around Bakara Market and that the TFG had recently announced it
would no longer shell that area whenever it came under attack from Al-Shabab
elements situated there.
341. We agree with the
appellants that it is not possible to derive any positive conclusion, so far as
Article 15(c) risk is concerned, from recent influxes of IDPs into Mogadishu. The fact that Mogadishu might have been perceived by a starving person from the
countryside as a better option than remaining at home to suffer and possibly
die in the current famine was more indicative of the extremely serious nature
of the humanitarian position in southern and central Somalia
, outside
Mogadishu, than it was evidence of any improvement in Article 15(c) risk, prior
to the Al-Shabab withdrawal.
354. The evidence regarding
the busy nature of Mogadishu International Airport has already been mentioned.
In her “Care and Compassion” report, Dr Hammond described a survey of private
investors in Somaliland (40) Puntland (29) and south/central Somalia
(18):-
“One of the most
interesting findings from this survey was that 88.9% of the respondents in
south/central Somalia
had lived abroad at some time. The main countries that
they had lived in were the United Arab Emirates and United Kingdom (each with
four respondents) as well as Canada (two respondents).”
The report continues:-
“Respondents from the private sector included hotel owners, cosmetics importers, sales companies, electricity providers, care organisations, fuel providers, medical and drug vendors, furniture importers, barbers, sweet sellers, transport operators, telecommunications companies, export agents, fishing companies, media representatives, a cell phone repairer, a banking company, an electronics importer, a remittance company, agricultural investors, a goldsmith, stationers, importers of construction materials, educational providers, restaurant owners, water providers, and other trades and businesses. Organisations in Somaliland tended to be older (37.5% had been operating for at least ten years), whereas in Puntland and south central they were younger (68.9% in Puntland and 70.6% in south central had been operating for less than ten years).”
Earlier in the same report we find:-
“Interviewees who are involved
in the private sector stressed that some space for business can be negotiated
for business in Somalia
despite the threats from militias, Al-Shabab, and
corrupt TFG officials. Businesses are generally able to rely on clan support
to deter criminal attacks on their holdings, and can work out arrangements to
move goods across insecure zones. Remittance companies, for instance, are able
to work with very large sums of cash and rarely experience armed robbery.
However, as discussed below some people in the Diaspora said that the
insecurity dissuaded them from becoming involved in business.”
355. We have already
referred to Mr Burns’ evidence regarding businessmen and also other
travellers. Mr Burns said in oral evidence that he travelled to Mogadishu once every eight weeks. He “confirmed that people did return to join their
families for holidays and younger Somalis who had never been to Somalia
wanted to come and see what it was like. Others came for marriage and some brought
their daughters to be circumcised.” When it was put to him that there was no
evidence that those returning for family visits were badly treated, Mr Burns
“agreed that he had not seen any such evidence but stated that such returnees
did not travel around, would remain in the family compound and then leave. He
stated that when he visited
Somalia
he never left the compound.”
359. We have had close
regard to the views of the UNHCR which are that Article 15(c) conditions
pertain across the entirety of southern and central Somalia
, including Mogadishu, such that all civilians are at risk of indiscriminate violence, by reason
only of their presence there. We note that, in areas taken by pro-TFG
militias, whether in Mogadishu or outside, there is evidence that Al-Shabab
“have reverted to guerrilla-style attacks … including roadside bombs, which is
again reminiscent of the insurgency against the TFG and Ethiopian army between
2007 and 2009” (June 2011 update to the Eligibility Guidelines, para 3.5).
360. Although we accept, per
Mr Hickman, that UNHCR holds the view it does about Article 15(c), it is not
the case that the Eligibility Guidelines themselves specifically state that
such an Article 15(c) risk pertains in southern and central Somalia
. At Part IVA of the May 2010 Guidelines, which sets out the “General Approach” to
eligibility for international protection, the only specific international
Convention cited is the OAU Convention of 1969. Article 1(1) of that defines
“refugee” in terms replicating Article 1(A) of the Refugee Convention. For
those not meeting these criteria, the Guidelines recommend that they “should be
granted international protection under the extended refugee definition in
Article 1(2) of the OAU Convention. In States in which the OAU Convention does
not apply, a complementary/subsidiary form of protection should be granted
under relevant national and regional frameworks.”
“2. The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination and events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refugee in another place outside his country of origin or nationality.”
362. In Part I (Armed
conflict in Southern and Central Somalia
), there is a specific reference to
Article 15(c), in the context of UNHCR’s conclusion that an Article 15(c) risk
extends across the whole of that part of the country. But the source cited in
the footnote in support of this proposition is AM & AM, which, as we
have seen, found that it was only in Mogadishu that the level of severity of
the conflict was so grave as to place the great majority of the population at
risk of the harm described in Article 15(c). Be that as it may, we do not
consider that we should go beyond having very careful regard to the UNHCR’s
views, and “accept the assessment set out in the Eligibility Guidelines on
Somalia
update”, as Mr Hickman contended at [35] of his written submissions.
Nor do we accept the submission that those Guidelines represent “the most
comprehensive analysis of the security situation in
Somalia
”. Their methodology
is sound, the range of external sources wide and the organisation itself well
placed to give its own highly-informed view. The Guidelines nevertheless form
only a part of the evidential matrix which the parties to the present
proceedings have assembled.
(b) Article 3
Armed conflict
Humanitarian situation
(c) Refugee Convention
(2) Southern and central Somalia
, outside Mogadishu
Evidence and submissions
372. So far as conflict
outside Mogadishu is concerned, Mr Hickman, for the UNHCR, submitted that
Article 15(c) protection should extend throughout southern and central Somalia
,
on the basis of the UNHCR’s conclusion in the Eligibility Guidelines of May
2010 that:-
“The widespread disregard
of their obligations under international humanitarian law by all parties to the
conflict and the reported scale of human rights violations make it clear
that any person returned to southern and central Somalia
would, solely on account of his/her presence in southern and central
Somalia
, face a real risk of serious harm.”
373. We have already
examined this issue in relation to Mogadishu (see above). As regards the
position outside the capital in southern and central Somalia
, the ECtHR in Sufi
& Elmi did not accept the UNHCR’s proposition. At [270] the Court held
that “it would appear that it is the conflict in Mogadishu which is primarily
responsible for Somali civilian casualties and widespread displacement” and
that “reports describe the fighting outside Mogadishu as sporadic and localised
around key strategic towns … consequently, while there is fighting in some
areas, other areas have remained comparatively stable”. Accordingly, at [271]
the Court was:-
“…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 will
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.”
374. In the present
proceedings, the respondent likewise pointed to the UKBA Fact-Finding Mission
as indicating that the level of conflict outside Mogadishu was much reduced in
most areas and most areas were described as stable. This was supported by the
written statement of Mr Burns and confirmed in his oral evidence. The OCHA
Protection Cluster Update suggested fighting in Lower Juba and Gedo, with the
COIS Report referring to clashes on the Ethiopia-Kenya-Somalia
border and armed
conflict in Bula Hawa and to a lesser extent in the vicinity of Beletweyne and
Dolo. In April 2011 the UN Security Council referred to fighting in Doolow,
Bulo Hawa, Lwq, Elwaaq, Dhoobley, Diif and Taabdo.
375. Conversely, there was
little evidence of fighting in Kismayo or in Lower Shabelle, including
Merka/Marka. According to Mr Burns, in May 2011 there was acute armed conflict
in Gedo, moderate armed conflict in Hiraan and Galgaduud regions and low armed
conflict in the rest of southern/central Somalia
. There was no evidence, the
respondent contended, of conflict in the Afgoye Corridor (e.g. Nairobi evidence: R M Ali). The most recent evidence points to a continuation of
significant fighting in Gedo, some in Hiran and problems beginning to appear in
parts of Puntland.
377. As will already have
become very apparent, the appellants sought to advance their claims to
international protection by reference to the evidence regarding the actions of
Al-Shabab towards those living or coming within areas of its control in
southern and central Somalia
. Although such areas included those in the north
of Mogadishu, the subsequent withdrawal of Al-Shabab from the capital means
that it is necessary to consider this aspect of the cases by reference to
Al-Shabab areas outside Mogadishu. Mr Eicke submitted that Al-Shabab should
not be regarded as a monolithic force, acting in the same manner in all the
places it held. Furthermore, the evidence (e.g. UNSC monitoring December
2008/December 2009; Landinfo August 2010) suggested that there were not enough
Al-Shabab fighters to run their areas on their own, so that it was necessary
for Al-Shabab to form alliances with local clans and councils of elders. This
fitted with the evidence from the Nairobi informants, that Al-Shabab would come
to a village and then move on, leaving two or three people to control it.
382. Although the
respondent accepted reports in the evidence of individuals being mistreated by
Al-Shabab after being accused of spying, no details were given of these
incidents; nor was there was anything to suggest they were connected with a
person being away from Somalia
. The same was true of the evidence regarding
punishments meted out for violations of Al-Shabab’s code of dress and
behaviour. Any temporary differences occasioned by being away from
Somalia
could be addressed with the aid of the large UK Diaspora population, before the returnee
went back to
Somalia
.
385. As for the position of
women in Al-Shabab-controlled areas, the evidence of Dr Hammond and Mr Burns
was both to the effect that women did, in fact, work in such areas and were
also able to set up businesses there. Indeed, since as a result of the
conflict, many women were now the breadwinner for their household, working was
an imperative. There was also material in the Nairobi evidence that confirmed
that Al-Shabab permitted women to work, although INGO in Somalia
indicated that this varied from place to place. A report of January 2011 relating to
Kismayo, which asserted that Al-Shabab had banned women from working
completely, went on to state that they had in fact been “banned from working
cafeteria” (sic) and “selling khat in the centre of town”. A ban on selling
khat, which also appears to have occurred in Bardhere, was disproportionately
affecting women who were the main khat sellers, but was not, Mr Eicke
submitted, evidence of a total prohibition on women being able to work.
387. Nor was there evidence
that suggested women generally had been stopped from travelling in Al-Shabab
areas or restricted to Muhrem (having to stay home unless with an adult male).
There was one report (allheadlinenews.com) from the Afgoye Corridor suggesting
that there were such restrictions and a report also stated that women’s ability
to access markets was constrained by limitations on access to transportation
because of rules regarding sex segregation. The problem appeared, rather, to
involve women not accompanied by adult males, which, Mr Eicke submitted, could
be solved by a clan member or friend, or by the driver of a minibus being
likely to be male. In any event, evidence such as the SAACID report on the
drought in Somalia
made it plain that there were large-scale movements of women
and children from Bay/Bakool to Mogadishu, which was inconsistent with the
suggestion that women could not travel unless accompanied by an adult male.
According to UNSC November 2010, although less than 5% of cases of sexual
violence were said to have been carried out by parties to the conflict, the
continued fighting had rendered women and children more vulnerable to sexual
violence because of displacement, destitution, the breakdown of the rule of law
and the re-emergence of armed groups and freelance militias. Nevertheless, the
respondent contended that there was no clear evidence the situation had
deteriorated since AM & AM or that there was any greater risk in
this regard to women in Al-Shabab-controlled areas. A conclusion that a real
risk existed in the case of a woman said to be prone to sexual violence was
actually based on factors personal to her. A woman returning to an area where
she had clan support or other resources would plainly be in a different
position to a lone woman in some IDP camps with no protectors or resources. There
was, furthermore, evidence that rape was not an Al-Shabab policy and not
condoned.
388. Dr Hammond’s evidence
confirmed that divorce is a practice known in Somalia
and, due to the deaths of
husbands or otherwise, the respondent contended that it was plainly not
uncommon for women to be single parents. Indeed, one of the present appellants
claimed in oral evidence he had left his wife and children in
Somalia
. Appellant ZF said she did not leave
Somalia
after her husband’s death because she was looking
after her sister’s two children.
390. Mr Eicke submitted
that not all IDPs in southern and central Somalia
lived in IDP settlements.
According to the UKBA fact-finding report, IDPs tended to live with family
members and the British High Commission letter quoted a source as saying that
IDPs who had “higher levels of assets do not live in IDP camps”.
391. UNOCHA indicators
reproduced in the COIS Report showed that compared with 2010, there had been an
increase in GDP per capita in Somalia
and improvements in life expectancy,
measles immunisation and population using improved drinking water. There had,
however, been a deterioration in some indicators, including adult and under-5
mortality, as well as numbers of IDPs and refugees. In 2010, 43% of the
population earned less than US$1 a day and inflation and continuing insecurity
led to a decreased standard of living in all areas. Nevertheless,
Somalia
maintained a healthy informal economy said to be “partially based on livestock,
remittance/money transfer companies and telecommunications”. Dr Hammond’s
“Cash and Compassion” report described the powerful effect of the Diaspora in
terms of cross-clan support for IDPs and investment in infrastructure such as
schools and hospitals. The Landinfo report of 22 August 2010 suggested that “most” Somalis were dependent on remittances from relatives abroad. Hawilaad
(remittance) companies were able to count on the entire community to protect them
from theft. The “Cash and Compassion” report also indicated that Diaspora
could send money to family members displaced by war within a day or two of
their dislocation, anywhere in
Somalia
, even to IDP camps. The use of
electronic communications technology was confirmed by Mr Burns.
392. In AM & AM,
the Tribunal noted that the humanitarian crisis in southern and central Somalia
was widely said to be the worst in seventeen years, with 3.2 million people (43% of
the population) dependent on assistance. The respondent submitted that,
following AM & AM, the figure had reduced to about 2 million, and
although this had risen, numbers were said still to be below those of AM
& AM. At the end of 2010 the figure was 2.4 million, according to a
COIS Report. Malnutrition rates had increased from 17.9 to 25% in Gedo and 25
to 30% in Juba region in less than six months.
393. The main reason for
the rise in those needing food assistance had been the poor rains. This was a
temporary phenomenon, although rainfall in 2011 was expected to be less than
average (reliefweb.int). Shortfalls in funding had meant that the World Food
Programme was only feeding 66% of the 1 million people who needed it, according
to a BBC report. Many organisations undertaking humanitarian services in
southern Somalia
had ceased or reduced activities due to the security situation
or problems in dealing with Al-Shabab (COIS/High Commission letter). The
evidence still indicated that there were organisations providing food and
humanitarian assistance, both in Mogadishu and elsewhere. The appellants’ own
expert evidence provided confirmation of NGOs operating in the Afgoye Corridor,
notwithstanding Al-Shabab control.
395. At [186] to [190] the
Tribunal in AM & AM considered that, whilst many residents had been
displaced from Mogadishu and become IDPs, an equally sizeable number appeared
to have made their way to areas of southern Somalia
where they had traditional
clan connections. IDPs from more influential clans or sub-clans appeared to
have a better chance of being tolerated in the area to which they had fled and
IDPs who had a traditional clan area, especially if they had family or friends
there, had better prospects of finding safety and support, although not if the
area was already saturated with other displaced people. Those who lacked
recent experience of living in
Somalia
appeared likely to have difficulty
dealing with the changed environment, and those returning to their home area
from the UK might be perceived as having relative wealth and be more
susceptible to extortion. Whether the IDP was female was a significant factor,
given the evidence of additional risks women and girls face of abduction, rape
and harassment. Also relevant would be the evidence about prevailing economic
conditions [160].
397. The appellants
supported and adopted the submissions made by UNHCR in relation to the whole of
southern and central Somalia
being within the ambit of Article 15(c) at the
present time.
409. The appellants
contended that there was, in fact, significant evidence of forced recruitment
by Al-Shabab. Human Rights Watch in April 2010 reported that Al-Shabab had
kidnapped and killed young men for refusing offers to join the group as
fighters. Several of those interviewed by Al-Shabab for the purposes of
recruitment had fled to Kenya after being threatened. In May 2010 UNICEF and
the UNSG’s Special Representative on Children and Armed Conflict were “appalled
to learn that the recruitment and use of children as soldiers by armed groups
in Somalia
is rising”. In November 2010 the UN Secretary General confirmed a
“considerable increase” in the scale of recruitment and use of children during
the previous two years, describing the practice as having become “more
systematic”. On 12 May 2011 an Al-Shabab official, learning that the TFG was
recruiting fighters in recently seized towns, stated that the best way to deal
with this was to prevent youth from travelling from Al-Shabab areas.
411. All this, according to
the appellants, underscored the finding at [159] of AM & AM, where
the Tribunal acknowledged as “significant” the evidence of Alex Tyler, the
UNHCR’s Protection Officer, that “Al-Shabab cells are likely to investigate any
newcomer to their areas to determine whether the individual is connected with
the TFG or otherwise opposed to them”. At [160] the Tribunal also noted that
“those who lack recent experience of living in Somalia
appear more likely to
have difficulty dealing with the change in environment”.
414. The appellants
submitted that the humanitarian situation in central and southern Somalia
had deteriorated significantly since the ECtHR received submissions and evidence in
Sufi & Elmi. For instance, the Food Security and Nutrition Analysis
Unit on 30 June 2011 updated the number of people in crisis from 2.4 to 2.85
million (January to June). The overwhelming majority of the 2.85 million were
in the south where there was “extremely limited food assistance due to
insecurity”. The 1.75 million people in crisis in the south included rural,
urban and IDPs, an increase from 1.4 million in January. Poor farmers in lower
Shabelle and Bay regions were joining the numbers of people in crisis due to
the very poor Gu harvest outlook. On 30 June Oxfam GB, writing of lower Juba, described the “devastating drought and ongoing conflict” as having left people
“facing starvation”. One elderly man told the Oxfam official of a Somali
proverb: “You use your feet to escape during war and drought”. Many were
fleeing to Kenya but parts of that country had had as little rain as
Somalia
. On 1 July 2011 the Danish Refugee Council described
Somalia
as being on the brink
of disaster, with war and drought forcing more than 30,000 people to flee
Somalia
every month. On 20 June 2011 FSNAU estimated that the total number of people in
need of humanitarian assistance would increase in the second half of 2011, with
the main driving factors being the worsening food security situation, including
unfavourable prospects for the Gu season harvest. The UNHCR on 5 July 2011 noted that the “devastating drought has forced more than 135,000 Somalis to
flee so far this year. In June alone, 54,000 people fled across the two
borders [Kenya and Ethiopia], three times the number of people who fled in
May”. UNHCR estimated that a quarter of
Somalia
’s 7.5 million population was
now either internally displaced or living outside the country as refugees. The
organisation was “particularly concerned by unprecedented levels of malnutrition”,
especially among refugee children. On 5 July 2011 the Famine Early Warning Systems Network was reported as stating that localised famine could be witnessed in
some of the worst drought-affected areas in southern
Somalia
in September.
415. At this point it is
convenient to refer to some of the more recent documentary evidence adduced by
the respondent. On 30 June 2011 allafrica.com reported information given to
IRIN that relief agencies were looking at the option of cash transfers, saying
that the system helped beneficiaries by giving them freedom of choice. In
February 2011 a family in Baran started receiving cash, rather than food,
thereby enabling the head of the family (a mother of seven) to decide how to
spend the aid. The protection cluster update weekly report of 1 July 2011 reported the UN as recently stating that Somalia
was experiencing “the worst
drought in over 60 years”, with over a million Somalis located in “nearly
unreachable areas … for humanitarian aid”. Save the Children reported an
average number of 1,300 Somali refugees arriving everyday at Kenya’s Dadaab Camp, many of them children, having travelled weeks on foot to reach the camp. On 6
July, a news report described how the Somali Diaspora were helping the nation
through its crisis. Interviewed in London, the CEO of Dahabshiil, a global
money transfer company which “sends more than US$1 billion to
Somalia
every year” described how, when there was a crisis, individual people who were in the
Diaspora wanted to send money back home. The CEO said that remittances were an
important way for people to make sure those they love get through hard times.
416. On 6 July 2011
Al-Shabab was reported, from Mogadishu, to be calling upon “both Muslims and
non-Muslims to act quickly to deliver humanitarian assistance to the
drought-infected Somali people”. The spokesman, Sheikh Ali Mohamed Rage, said
that those wanting to help the starving should contact Al-Shabab officials.
Shortly after, Reliefweb referred to the suspension in 2009 of US$50 million of
US humanitarian assistance for Somalia
“out of concern that it might benefit
Al-Shabab, designated as a terrorist organisation”. Humanitarian assistance to
populations under the control of Al-Shabab was “under close scrutiny by the
United Nations Security Council since its Resolution 1916 of March 2010, as the
group represents a threat to peace and security and is suspected of diverting
humanitarian aid to fuel its own war efforts”. On 6 July, BBC News also
reported the lifting of the ban on foreign aid agencies by Al-Shabab; however,
an article accessed on 13 July 2011 described Al-Shabab fighters as having
detained in Baidoa personnel working for international relief organisations,
namely, UNICEF and the Red Cross. The aid personnel were taken to an unknown
location and at the time of writing the reason for the incident was not known.
This “comes as Al-Shabab said last week it was lifting the ban on aid agencies
to help the starving people”.
417. BBC News Online July
reported the accounts of individuals who had reached the Kenyan border from
south Somalia
. Weheleey Haji and her five children trekked for several weeks
from their homeland in
Somalia
, walking for 22 days, drinking only water. Her
baby had been born under a tree in the Dadaab Refugee Camp, just after
arriving. Rukiyo Noor had been travelling for twenty days with a 1 month old
baby. Told about the Al-Shabab ban on foreign aid agencies being lifted,
Mohamed Abdi, walking with his wife and children towards Dadaab, was sceptical.
He said that Al-Shabab militiamen had told the family to turn back, saying “it
was better to die in our motherland. They wanted us to pray for the rains.”
Mr Abdi, however, said he had no choice and set out on the journey. Although
there was “relative peace in
Somalia
where I live”, the family had still
decided to flee because of the drought.
418. On 11 July it was
reported in Washington DC that USAID would contribute approximately 19,000
metric tons of food to assist Somalis in need. On 13 July, the BBC reported
that UK charities were poised to boost aid to Somalia
and that the Organisation
of Islamic Cooperation Aid Agency had started distributing aid in Mogadishu,
following the lifting of the ban by Al-Shabab.
“The Government submitted that there is evidence of increased urbanisation of the Afgoye 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 Afgoye Corridor as landlords are either selling land that IDPs live on or are charging rent that they cannot afford.”
420. As for domestic
authority, in NM, the Tribunal found that “any person at real risk on
return of being compelled to live in [an IDP camp] as having little difficulty
in making out a claim under Article 3, if not under the Refugee Convention
also” [102]. In HH, the Tribunal said that a person who had been
displaced from his or her home in Mogadishu “without being able to find a place
elsewhere … with clan members or friends, and who, as a result, is likely to
have to spend any significant period of time in a makeshift shelter along the
road to Afgoye, for example, or in an IDP camp, may well experience treatment
that would be proscribed by Article 3 of the ECHR”. In AM & AM the
Tribunal considered that having to live in the dire humanitarian conditions of
an IDP camp could amount to treatment in breach of Article 3 and, in doing so,
according to the appellants, rejected a submission from the respondent, similar
to that now advanced, that “of and by itself, poor humanitarian conditions in
Somalia
, even if in an IDP camp, would not establish an Article 3 breach” [87].
421. The appellants
submitted (citing Limbuela v Secretary of State for the Home Department
[2005] UKHL 66 and Moldovan v Romania No 2 (2005 App. 41138/98) that
whilst a mere failure to provide a basic level of support which resulted in
destitution and degradation would not, without more, engage Article 3, the
positive institution of a regime which resulted in such destitution and
degradation could amount to “treatment” within Article 3. Thus, dealing with
the evidence regarding displacement from Mogadishu as a result of the armed
conflict there, the predicament of those displaced was not a consequence of
naturally occurring phenomena or lack of resources in Somalia
but a consequence of the treatment by agents of serious harm. The conflict was also
responsible for the destruction of physical and social infrastructure,
indispensible for people in such a position to sustain themselves adequately.
That breakdown had diminished if not extinguished the capacity of state and
non-state institutions, including traditional systems such as elders, clan
leaders etc., to provide protection to IDPs, thereby leaving the latter
particularly vulnerable to criminal violence. The actors were also responsible
for denying or substantially restricting humanitarian access to the displaced.
426. Analysing the latest positions
regarding armed conflict outside Mogadishu, the respondent considered that it
remained the case that fighting was confined to certain areas. That finding
had led to four of the six districts of Gedo coming under the TFG’s control,
with Garbaharey and Bardere remaining with Al-Shabab. Elsewhere, pro-TFG
militias were said to have gained further ground in Hiran, Galgaduud, Bay and
Bakool, and Lower Juba (African Union, 13 September). The same report
considered that the security situation in Puntland and Galmudud had
deteriorated. In Puntland, there was fighting between the region’s security
forces and pro-Al-Shabab militias, whilst in Galmudud, rival clans had been
fighting each other. On the other hand, the respondent contended that the
evidence showed security had improved in border areas between Somalia
and Ethiopia/Kenya.
427. The AI Briefing
described fighting outside Mogadishu in southern Somalia
as “sporadic”. There
were suggestions that Al-Shabab fighters from Mogadishu had mobilised in the
Gedo region, whilst there were tensions reported amongst the TFG militia
controlling areas of southern
Somalia
. In the Mudug region of central
Somalia
, fighting had erupted at the end of August in Galkayo, causing massive displacement from Galkayo Town to nearby villages (Protection Cluster Update).
434. The AI Briefing stated
that, although the large scale movement of Somalis across the Ethiopian and
Kenyan borders had reduced since June/July 2011, many people continued to seek
refuge in countries neighbouring Somalia
and that there were “many instances of
human rights abuses against people in flight, such as looting, extortion, and
sexual violence”. Those, particularly men, fleeing towards Puntland had been
refused passage at checkpoints and either deported or arrested.
435. Turning to the wider
humanitarian situation outside Mogadishu, the appellants pointed to the further
declarations by the UN of famine, so as to cover most regions of southern Somalia
. The appellants pointed to recent evidence that, despite earlier announcements to
the contrary, Al-Shabab continued to prevent or restrict aid agencies from
operating in areas they controlled. This had resulted in agencies being unable
to reach an estimated 2.2 million Somalis (US Secretary General’s Report of 30
August). Thus, for example, on 21 July, Al-Shabab allegedly refuted the UN’s
declaration of famine in
Somalia
, saying that Somalis had no need of assistance
from non-Muslims. The lifting of the ban on aid agencies did not, according to
the report, include those who had been banned earlier, because Al-Shabab
regarded them as “spies” (
Somalia
Report). The appellants also pointed to various
pieces of evidence regarding Al-Shabab preventing people from fleeing its
areas, to escape the consequences of the famine.
436. For those who,
nevertheless, managed to travel, the UN Secretary General’s Special
Representative on sexual violence in conflict stated on 11 August that, during
the journey from Somalia
to the Kenyan camps, “women and girls are subjected to
attacks, including rape, by armed militants and bandits” and that Al-Shabab
militants were said to be abducting girls for forced marriage to fighters. On
23 August, a 6 year old girl was taken by hyenas, whilst travelling. On 3
September five people were killed and five injured when bandits opened fire on
a minibus travelling from Bal’ad to Jowhar.
437. On 20 July, famine was
declared in southern Bakool and Lower Shabelle and on 3 August famine was
declared in parts of middle Shabelle and the Afgoye corridor. The criteria for
a declaration of famine required acute malnutrition exceeding 30% in a given
area – the actual malnutrition rates were as high as 58% in some areas; a crude
death rate exceeding two in 10,000 per day – in some parts the rate was fifteen
per day; and food access below 2,100 calories per day for at least 20% of the
population. Malnutrition rates in the Somali famine-declared areas were “the
highest in the world, with peaks of 50%. Nearly half of the Somali population,
3.7 million, is now in crisis and an estimated 2.8 million of those people
reside in the south” (Somalia
: Famine and Drought Situation Report 23 August).
440. According to Professor
Menkhaus (8 August) all of Africa was relatively used to droughts and floods
and the local population historically had developed “pretty elaborate coping
mechanisms. But those coping mechanisms have been overloaded in recent decades
by a wide range of factors”. The coping mechanisms had become broken;
“particularly in Somalia
”. According to Menkhaus “a big part of the crisis in
Somalia
is not just that people used to be able to farm for subsistence and now can’t;
there are lots of people whose purchasing power has been badly eroded”. The
Professor identified a “perfect storm” in
Somalia
, involving the worst drought
for 60 years and people displaced by years of warfare. He attributed the fact
that Somaliland had not seen famine to that region’s reasonable level of
security and stability, in contrast to
Somalia
. That view was supported by
Professor Samatar, who noted that neither the drought of the mid 1970s nor that
of 1984 produced famine in
Somalia
“because the Somali state was able to
mobilise the population and to seek the assistance of the international
community to deliver aid to the needy”. The last time Somalis suffered major
famine was in 1992 which, according to Samatar, was not caused by drought, but
by marauding warlords. As for the present position, Professor Samatar
considered that the Somali people had been “made vulnerable to ecological
disturbances” because of the US war on terror, and consequent backing of the
Ethiopian invasion; the TFG, which was “known for its corruption, incompetence
and internal strife”; and Al-Shabab, who obstructed the provision of
international assistance and whose existence led to the US blocking aid to what
is identified as a terrorist group.
441. The TFG prime minister
acknowledged that the insurgency and the violence that Al-Shabab imposed were
“a fundamental cause of the famine we are suffering”. However, the UN
Secretary General’s report on Somalia
noted that “deforestation and land
degradation in southern areas of
Somalia
have increased exposure and vulnerability
to the effects of natural hazards and climate change, such as drought and
floods. Much of the deforestation can be attributed to the charcoal trade as
the land where the acacia forests have been cut down for charcoal, such as
between the Juba and Shabelle rivers, often becomes unsuitable for grazing,
leading to increased conflict over land and water and the displacement of local
population”.
442. The respondent pointed
to recent evidence that, it was submitted, showed improved aid access in
southern Somalia
. This extended not only to Mogadishu but to the Afgoye
corridor. OCAJ’s Humanitarian Overview of August 2011 stated that food
assistance had been scaled up significantly, from 730,000 people in July to 1.3
million in August. In the south, 648,000 people had benefited from food
distributions in August, which was double the number of people reached in
July. Emergency water services for each 1.7 million people in August, and
140,000 in July. Coverage of areas facing famine was, however, still a major
challenge for the humanitarian community. Operations had been scaled up
substantially in Gedo and parts of Lower Juba. According to a UNSC Report of
30 August, during the past two months over 23,300 severely malnourished
children in central and southern
Somalia
had been provided with ready-to-use
therapeutic foods. Continued support for the drinking water systems, including
in Mogadishu and the Afgoye corridor, was providing safe drinking water to more
than 1.9 million people. Thirteen hospitals across southern
Somalia
received enough emergency health kits to assist a catchment area of 130,000 for three
months. Over 24,500 farmers and pastoralists had, according to the United
Nations, refused agriculture and livelihood interventions to prepare for the
coming rains in October to December.
444. Al-Shabab had recently
allowed Turkey to distribute assistance to people living under the
organisation’s control. Turkish humanitarian organisations were providing
relief in Bay and Bakool regions, in cities like Baidoa and Kismayo.
Constraints on the provision of aid included limitations on international
funding and infrastructure problems. Professor Menkhaus was quoted as saying
that the “challenge right now is just to get food aid in” but that the second
challenge was towards rebuilding livelihoods. The question of governance of Somalia
remained outstanding. Although Al-Shabab “may be crumbling, ….the TFG remains irrelevant
and is just the source of massive corruption”. The Professor reported in
August that there had been a shift in US policy, which now involved protecting
NGOs from being prosecuted under the Patriot Act for doing business with
Al-Shabab. Nevertheless, Al-Shabab continued blocking food aid.
446. AI’s briefing
described the humanitarian crisis in southern and central Somalia
as having already claimed tens of thousands of lives, of which the majority were children.
The crisis has now affected some four million people including three million
living in south and central
Somalia
“and is predicted to worsen, with the onset
of the rainy season. Aid agencies are concerned that contagious diseases,
including cholera and measles, will spread further”.
447. AI noted Médicins Sans
Frontières as stating that many areas in southern and central Somalia
remained
without access to humanitarian aid and that Al-Shabab, “ already suspicious of
western agendas, has placed bans on foreign staff, on the supply of medicines
and materials by air, and on vaccination activities” (5 September). There
continued to be reports of humanitarian workers being abducted and held
temporarily by Al-Shabab, as well as temporary arrests of relief workers in
areas controlled by the TFG militia. In Mogadishu, Turkish relief workers had
been held by TFG forces after returning from delivering aid to Al-Shabab
controlled areas. Al-Shabab was reported to be preventing populations in need
of assistance from moving to areas controlled by the TFG, both in Bay and
Bakool and in lower Shabelle. Persons who had fled from famine stricken
villages to Baidoa were reportedly turned back by Al-Shabab in late
September.
The Tribunal’s findings
(a) Article 15(c)
448. On the evidence before
us, we do not consider that the internal armed conflict which obtains in
southern and central Somalia
(outside Mogadishu) is at present at such a level
as to place everyone there who is a civilian at real risk of the harm described
in Article 15(c). We acknowledge that the starting point in AM & AM
in effect requires us to identify a material change. The evidence of the
intervening years, including large Al-Shabab territorial gains, constitutes
such a change, albeit that there are areas where the organisation’s rule is
being challenged. The current fighting, as that of the recent past, is both
sporadic and localised. Like the ECtHR, our assessment of the evidence does not
accord with what appears to be the thrust of the UNHCR Eligibility Guidelines
and there is nothing in the update to those Guidelines which suggests a
different stance is called for. There is copious evidence to the effect that
large parts of southern and central
Somalia
are relatively peaceful, in the
sense that there is no conflict taking place there. In Al-Shabab areas there
is a dark side to that peace, as we have seen and will shortly have to address.
(b) Article 3
451. As is apparent from Sufi
& Elmi, there are three elements to Article 3 risk in southern and
central Somalia
: the armed conflict, the risks inherent in living under
Al-Shabab rule; and the humanitarian position, consequent upon the prolonged
drought. We address each in turn.
Armed conflict
452. In view of our finding
regarding Article 15(c), there can be no question of a returnee being at real
risk of Article 3 harm in southern and central Somalia
solely on account of the
situation of armed conflict or “general violence” (Sufi & Elmi
[271]). An individualised assessment is required, depending on the location
concerned.
Living under Al-Shabab
453. At [277] the ECtHR in Sufi
& Elmi concluded 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-Shabab-controlled area”. It did so on the basis of the
evidence before it regarding Al-Shabab’s enforcement of “a particularly
draconian version of Sharia law” [273] and the impossibility of predicting the
fate of a returnee who came to the attention of Al-Shabab for failing to comply
with that organisation’s rules, having regard to reports that “Somalis have
been beaten or flogged for relatively minor infringements” [276].
457. The appellants, again
on the basis of a certain amount of evidence, submitted that it was likely
there was under-reporting of Al-Shabab atrocities and other bad behaviour. As
a matter of common sense, one might imagine that an individual beating of a
person in a remote village in Somalia
is less likely to be reported than the
beating of a person in a city, town or village in the United Kingdom. But, be that as it may, we do not need to have recourse to any supposition as to under-reporting.
It is abundantly plain from the evidence before us, only a part of which we
have specifically mentioned above, that Al-Shabab regularly behaves in a way
which seriously violates fundamental human rights.
459. The ECtHR considered
that persons who were able to “play the game” (to use a phrase borrowed from
the UKBA FFM report) would also not be at real risk; but that a person without
recent experience of living in Somalia
would be unlikely to be able to do
this. We will examine in due course the significance of “playing the game” in
the context of the Refugee Convention. First, however, we must assess the
evidence, in order to determine whether it can be said returning after a
significant absence from
Somalia
would, indeed, preclude a person from
conforming with Al-Shabab’s requirements.
460. Mr Eicke submitted
that the extremely strong links that exist between the Somali Diaspora and
people in southern and central Somalia
, particularly assisted by modern means
of telecommunications, meant that it would be perfectly possible for a Somali
in the United Kingdom to enquire, either directly or through Diaspora
organisations or groups, as to what was necessary, by way of compliance with
Al-Shabab requirements, in the area to which the person concerned would be
returning. To some extent, this is so, however, there are two reasons why it
does not materially carry matters forward for the respondent.
463. The key question,
however, is whether this risk, which appears to exist to some extent for
everyone living in Al-Shabab areas, becomes a real risk of harm in respect of
those returning from the United Kingdom. Mr Eicke submitted that there was no
evidence to suggest that it did. He pointed to the absence in the news and
other reports regarding execution etc. for “spying” of anything to suggest that
the victims were chosen because they had recently arrived in the area. He also
drew particular attention to the 16,000 Somalis whom Saudi Arabia had last year
returned to Somalia
and the absence of any evidence that they had been harmed
(the most recent evidence indicates thousands more were returned this summer).
For their part, the appellants submitted that there was, in fact, no evidence
one way or the other as to what had happened to the returnees from Saudi Arabia
and that the absence of any evidence that those returned from the West had
suffered difficulties in this regard could well be due to the fact that few if
any such persons were being returned.
466. We very much doubt
whether persons who have been away from Somalia
for only a short period of
time, and certainly only since the emergence of Al-Shabab as a major actor in
southern and central
Somalia
, would have undergone linguistic changes and
changes in his or her deportment, such as to draw Al-Shabab’s attention to
them. We are, however, prepared to accept, having regard to the lower standard
of proof, that a person who has been outside
Somalia
for a longer period could
have undergone such changes. It is also plainly the case that an overweight or
even well-nourished man or woman is likely in the present sad state of affairs
to be noticeable in southern and central
Somalia
.
467. As for these
characteristics being only temporary, we agree with Mr Toal that the adverse
attention is likely to come to pass immediately or soon after return, before
the individual can lose those characteristics. Mr Eicke did not seek to
suggest that, as a general matter, there might be some place in Somalia
where returnees could “re-acclimatise” before venturing into an Al-Shabab area.
470. We do not find the
evidence shows that a returnee from the United Kingdom runs any significant
risk of forced recruitment into the ranks of Al-Shabab. Mr Burns’ evidence was
to the effect that such recruitment was not common and the latest evidence
tends to support his view. Nor do we consider that a returnee from the United Kingdom would be at any greater material risk as a result of a perception that he or
she would have money, whether or not from United Kingdom Government sources.
Indeed, we are not persuaded at all by the expert evidence, which sought to
suggest that there was some degree of animosity as between current residents in
Somalia
and the Diaspora. On the contrary, the evidence points to an
extremely strong degree of connection between the two groups, not least
financially. There is only very limited evidence that Al-Shabab has
successfully stopped people from using mobile telephones etc. in order to get
funds, and we do not consider it can be said that there is a reasonable
likelihood of a person returning to an Al-Shabab area being identified as a
returnee on the basis of his or her use of a mobile telephone.
471. Our conclusions on
this issue are, accordingly, with some nuances very much like those of the
ECtHR in Sufi & Elmi: in general, 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-Shabab controlled area. We consider
that “no recent experience” in this context means that the person concerned
left
Somalia
before the recent rise of Al-Shabab, and its territorial gains in
the region, which occurred in 2008. This does not, however, mean that a person
with such recent experience will be unable to make good a claim to
international protection. Even in such a case, the person concerned will, of
course, be returning from the United Kingdom, with all that that may entail.
However, in general it will be less likely that such a person would be readily
identifiable as a returnee. Even if he or she were, the evidence may point to
him or her having struck up some form of accommodation with Al-Shabab, whilst
previously living under their rule
Humanitarian situation
475. At [282] of Sufi
& Elmi, the Court found that 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 drought, the test in N v United Kingdom may well have been considered
to be the appropriate one”. The Court, however, found that the drought was
only a contributory factor to the humanitarian crisis, which was “primarily due
to the direct and indirect actions of the parties to the conflict”.
477. On the evidence before
us, we conclude that it is not the actions of the parties to the conflict which
have caused the state of famine in southern and central Somalia
and the present international humanitarian crisis but, rather, the worst drought there has
been for 60 years. Although the effects of the drought have been noticeable
for some time, and discussed in previous country guidance cases, the
predominant factor behind the decision of families to leave their homes and
trek long distances, in often appalling conditions, either to Mogadishu or to
neighbouring countries, has been because their livestock have perished, and
their subsistence farming is no longer sufficient to support them. It is
impossible to accept the suggestion that the parties to the conflict have
caused a breakdown in infrastructure, which has led these families to leave.
478. There is no suggestion
that, even before the Somalia
civil war started in the 1990s, there was much in
these areas by way of infrastructure. There is more force in the point that
systems of clan support have broken down as a result of the fighting and still
more force in the submission that the activities of Al-Shabab, not least in
prohibiting foreign non-Muslim aid, have made the situation worse. But, the
fact remains in our assessment that it is the drought that is the predominant
cause of what the world was witnessing in
Somalia
in the summer of 2011.
480. This does not,
however, mean that, because they are not a predominant cause, the direct and
indirect actions of the parties to the conflict fall to be left out of account
in deciding whether the humanitarian conditions in southern and central Somalia
are such as to bring Article 3 into play. On the contrary, as we have already
indicated, it seems to us that those actions have a very real role in the
assessment of whether, in terms of the law as set out in N v United Kingdom, the present situation is one of those “very exceptional cases” in which
humanitarian conditions trigger Article 3. Looking at the evidence in this
holistic way, we find that the present situation in southern and central
Somalia
is, indeed, one of those “very exceptional cases”.
482. The contrast between
such cases and that of southern and central Somalia
is stark, as the evidence
shows. A test founded on exceptionality must still be capable of being met;
otherwise it is bogus. We consider that the widespread famine, unique to our
planet at the present time, coupled with the exacerbating factors we have
described, discloses a situation of sufficient exceptionality to cross the
threshold set in N. It is this mix of factors that makes the situation
exceptional, not the predominance of the parties’ actions that causes the
threshold to be lowered.
486. Our conclusion on the
humanitarian position in southern and central Somalia
(excluding Mogadishu) is as follows. Like the ECtHR at [296] of Sufi & Elmi (but by a
different route) we have concluded that as a general matter a returnee who
would find themselves in an IDP camp, following a return to southern and
central
Somalia
at the present time, would be at real risk of exposure to
treatment contrary to Article 3 on account of the humanitarian conditions
there.
487. However, we go further.
Given the severe nature of the humanitarian crisis, worse even than when the
ECtHR considered the position, a person who would in normal conditions have had
the ability to go to his or her home village, which is unaffected by the
fighting but which is within an area in which there has been a declaration of
famine, should at present and as a general matter be assumed to face in that
village the kind of desperate situation as is disclosed in the background
evidence, with the result that, lacking means of sustenance, he or she would
have to try to take refuge somewhere else, such as many thousands of others are
doing. Leaving aside for this purpose the issue of Al-Shabab, we do not
consider that even the possible availability of the United Kingdom Government
money for return (as to which there is an evidential dispute) is likely
materially to affect the position in this regard. In areas where there simply
is no food, having money is unlikely to put a person in a better position;
everyone in such areas is reasonably likely to be reliant on international aid.
(We note Professor Menkhaus’ comment that “there is food on the market in much
of Somalia
”, but we are here considering a rural person, where the only food
was from the land and that land is now barren.) Thus, although we have, like
the Strasbourg Court, used the likelihood of ending up in an IDP camp as a
general touchstone for Article 3 harm, the basic position is, rather, that the
generality of those hypothetically removed to southern and central
Somalia
at
the present time will face Article 3 violations by reason of the humanitarian
conditions prevailing in the region.
488. It is necessary to
emphasise that these are general findings. There may be cases where
the evidence indicates that a person is from, say, a town in southern and
central Somalia
(other than Mogadishu) where the drought is having less of an impact
than in the countryside, and where a person has family or clan support. If the
town in question is under Al-Shabab control, there are likely to be other
problems, as we have indicated above. But, purely by reference to the
humanitarian position, such a person would, nevertheless, be returnable without
Article 3 breach. Judicial fact-finders will need to be satisfied that the
evidence supports such a conclusion (see further paragraphs 503 to 507 below).
(c) Refugee Convention
“36. It may be said that there is marked difference in seriousness between the impact of having to lie on isolated occasions about political opinions which one does not have, and the ‘long-term deliberate concealment’ of an ‘immutable characteristic’, involving denial to the members of the group their ‘fundamental right to be what they are’ (see per Lord Hope para 11, 21). We are not persuaded, however, that this is a material distinction in this context. The question is not the seriousness of the prospective maltreatment (which is not in issue) but the reason for it. If the reason is political opinion, or imputed political opinion, that is enough to bring it within the Convention. In this case, we are concerned with the ‘imputed’ political opinions of those concerned, not their actual opinions (see para 4 above). Accordingly, the degree of their political commitment in fact, and whether political activity is of central or marginal importance to their lives, are beside the point. The ‘core’ of the protected right is the right not to be persecuted for holding political views which they do not have. There is nothing ‘marginal’ about the risk of being stopped by militia and persecuted because of that. If they are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that seems to us to be covered by the HJ(Iran) principle, and does not defeat their claims to asylum.”
(3) Internal relocation
(a) To Mogadishu
499. In the light of our
earlier findings regarding Mogadishu, that persons currently there are, as a
general matter, running an Article 15(c) risk, it would plainly be unreasonable
to expect a person whose home is elsewhere in southern and central Somalia
to relocate to Mogadishu. The limited qualification we have made to the assessment of
Article 15(c) risk is highly unlikely to have application to a person whose
home area is not Mogadishu because the necessary accommodation and social
support to alleviate the risk of indiscriminate violence are unlikely to be
available.
(b) To an IDP camp in the Afgoye Corridor
(c) To an area controlled by Al-Shabab
502. For the reasons we
have already given, a returnee from the United Kingdom to an Al-Shabab area,
certainly if he or she had no history of having lived under Al-Shabab in that
area, faces at the present time a real risk of serious harm. Internal
relocation to such an area is, accordingly, out of the question. Although
Al-Shabab appears to be losing ground outside Mogadishu to the TFG, it still
remains dominant in large parts of southern and central Somalia
.
(d) To an area not controlled by Al-Shabab
503. As we have found, the
current humanitarian crisis in southern and central Somalia
is, at present, in
general sufficiently grave as to engage Article 3. It therefore follows that
internal relocation to a place stricken by famine or near-famine would not be
possible, even if that place is not under the control of Al-Shabab.
Nevertheless, we have found that there are certain exceptions to the Article 3
risk, as regards a person’s home area in central and southern
Somalia
(paragraph 468 above).
“Scarce resources and natural disasters such as floods and droughts limit the possibility for and willingness to support new arrivals in an area, even where they belong to the same clan. However, great efforts are still made to help relatives and neighbours. …it is common to find families consisting of six to eight members, opening their homes to a further six to eight relatives. They share the little they have, but without the money transfers from abroad, the already difficult living conditions would be significantly worse for the large majority of the population.”
507. A person who has a
clan or strong family connection with a particular area in south or central Somalia
, not controlled by Al-Shabab, particularly a town, may, in the light of all this,
have an internal relocation alternative to that place. In the light of the
present humanitarian crisis, the cogency of the indicators pointing to such a
position would need to be powerful. However, as the nature of that crisis
diminishes, as we all hope it must, the importance of such an internal
relocation alternative is likely to grow. The same is true if Al-Shabab
continues to lose territory to the TFG/AMISOM and/or those aligned with them.
(4) Travelling home or to another place of safety
509. To this end, we
received a good deal of evidence and submissions regarding methods and routes
of return, including from Mogadishu to the appellants’ home areas (in those
cases where that was different). In all five cases, the respondent’s intention
is that the appellant should be returned to Mogadishu. Precisely the same
stance was taken by the respondent in Sufi & Elmi, notwithstanding
that Sufi came from Qoryoley, a town under Al-Shabab control, and Elmi from
Somaliland [302] [311]. The ECtHR at [311] was clearly puzzled as to why the
respondent was not proposing to return Elmi to Hargeisa, the main town of Somaliland. The Court thought that her decision not to do so appeared to contradict the
assertion that Elmi would, in fact, be admitted to that self-governing area.
As we have already seen, appellant ZF, despite her protestations to the
contrary, has in practice been held to come from Somaliland. The respondent’s
stance was, in effect, that it was up to appellant ZF, if she saw fit, to get
from Mogadishu to Somaliland. It is, however, for the Tribunal to decide
whether it is reasonably likely that she will suffer serious harm getting
there. If she would, appellant ZF would be entitled to international
protection, subject to the issue of being able to live elsewhere in Somalia
. In this regard, Article 8 of the Qualification Directive is not apt to exclude an
assessment of “risks to life and limb”, as opposed to mere “technical obstacles
to return” (QD [83]).
510. The same is true of
appellant AMM
(who comes from Jowhar) and appellant MW (who comes from Merka)
and, indeed, of the other appellants, who need to get from Mogadishu
International Airport, the point of return, to the city of Mogadishu.
514. The respondent also
relied on AM (Evidence – route of return) Somalia
[2011] UKUT 54 (IAC)
which held, relying on the UKBA fact finding report, that Al-Shabab checkpoints
“are generally well disciplined and their concern is whether travellers comply
with the rules and norms of behaviour required”.
516. So far as Al-Shabab is
concerned, as is already evident from our findings, a distinction needs to be
drawn between people passing through checkpoints, who are long-term residents
of Somalia
, and those who have been living in the West for any significant
period of time. The evidence that we have had the benefit of considering is
far greater than that available to the Tribunal in AM [2011].
519. Although we have
concentrated on appellant ZF, the findings we have made regarding travel also
apply to those, such as appellant MW, who might be travelling from Mogadishu to destinations within central or southern Somalia
. A judicial fact- finder
would need to be satisfied that the person concerned could, in fact, travel
home or to the other proposed place of safety, without going into an
Al-Shabab-controlled area. Even then, the position for unaccompanied women is
likely to be severely problematic, compared with, say, a young, able-bodied
man.
521. So far we have dealt
with overland travel. A striking feature of the evidence before us, however,
and one which may well have implications for future Somali appeals, was the
availability and relative safety of air travel within Somalia
(including, for this purpose, Somaliland).
522. Flying into Mogadishu International Airport is sufficiently safe. This was the clear import of the
evidence, both written and oral. Dr Hammond’s description of problems at the
airport and of aircraft adopting a certain trajectory in order to avoid arms
fire, was at variance not only with the evidence we heard but also the findings
in HH and AM & AM. The airport area itself is, and long has
been, under the control of TFG/AMISOM. We were not provided with any evidence
to suggest that commercial aircraft are at real risk of being shot at whilst en
route to other airports in Somalia
.
523. Informants told the
UKBA’s Fact-Finding Mission that air travel within Somalia
was common. We were
presented with no evidence from the appellants to indicate the contrary. The
FFM team were told that, as well as regular flights between Mogadishu and Nairobi, there were flights to Hargeisa from Nairobi and flights from Djibouti to Berbera ( Somaliland). African Express, Puntair, Juba and Dalow all operated flights in
Somalia
. A security adviser said that “people travel regularly within
Somalia
by land and by air. Most airports are operational, mainly with charter flights and
it is possible to fly to Mogadishu, Hargeisa, Garowe, Galcayo and Bossasso.”
524. If, in a hypothetical
case, the respondent is able to point to evidence that the returnee can fly
from Mogadishu International Airport to a town in central and southern Somalia
, the focus of the appeal may well be upon the person’s hypothetical situation in
that town, rather than on any problems accessing it by an overland route. This
was not, however, the position in the present appeals, where there is no
suggestion that appellant
AMM
could fly to Jowhar or appellant MW to Merka
(both of which are, in any event, currently controlled by Al-Shabab). Nor was
it suggested that either they or appellants FM and AF (who come from Mogadishu) could fly to some other place in central or southern
Somalia
.
(5) Somaliland and Puntland
525. These appeals were not
earmarked as potential vehicles for giving country guidance on the position
within Somaliland or Puntland. However, subject to what we will say in a
moment, it appears to be accepted by the respondent that “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” (Sufi &
Elmi [103]). The ECtHR was there citing what it regarded as evidence from
the respondent’s Operational Guidance Note on Somalia
of 1 July 2010. Whilst we take the view (as the Tribunal did in EM & Others) that Operational
Guidance Notes are not, as such, evidence, it is nevertheless possible to have
regard to them as an indication of the respondent’s view of the available
evidence. Indeed, an examination of the OGN of March 2009, included in the
evidence of the appellants, makes it plain that the respondent’s views in this
regard are rooted in the COIS Report on
Somalia
. There is, accordingly, no
evidential basis for departing from the conclusion at [101] of NM and others,
that Somaliland and Puntland
in general only accept back persons who were former residents of those regions and were members of locally based clans or sub clans. The Netherlands Ministry of Foreign Affairs report of November 2004 notes at paragraph 4.6 that UNHCR is encouraging the return of Somalis originating from Somaliland and Puntland ’Originating from’ is interpreted here to mean ‘having previously lived there for some time (more than a year)’” (original emphasis).
“3.2 United Kingdom
Current estimates of the
number of Somalis living in the UK range from 95-250,000. The official 2001
census reported a population of 43,000 (Casciani, 2006). The 2006 Annual Population Survey (APS) gives a figure of 82,300. However, neither of these
figures include Somalis born in the UK or in any country outside Somalia
. The census figures from 2001 suggested 89% of all Somalis were living in London, but this percentage is almost certainly lower now as a result of the dispersal
policy. Large Somali communities have developed in Bristol, Manchester, Birmingham, and Leicester, among other places.
The UK’s Somali population is older and better established than in many other European countries. The
first Somalis to settle in the UK were seamen from Somaliland who [were] in the
British merchant navy, and settled in coastal areas such as Cardiff, Bristol and Liverpool during the early 1890’s (Change Institute 2009:24). During World
War 2, Somalis served with the British navy, and some took up residency in the UK to obtain employment, particularly in Sheffield and South Yorkshire (Ibid, citing Halliday
1992:1B). The post-war economic boom in the UK also drew Somalis; the
Somalilander community in London’s East End (one of the areas with the largest
concentrations of Somalilanders in the UK) formed during this period (Bradbury
2008:175). Only since the weakening and eventual collapse of the government of
Somalia
at the end of the 1980’s – early 1990s has the population included
large numbers of refugees and asylum seekers. Today Somalis are consistently
among the top ten countries generating asylum seekers to the UK.”
528. In the light of this
connection, it is not unreasonable to hypothesise that some of those who arrive
in the United Kingdom seeking international protection from alleged harm in
southern and central Somalia
are, in reality, persons from, or otherwise having
a strong connection with, Somaliland. Indeed, that is precisely the position
with appellant ZF. Where the respondent has reason to believe that an asylum
seeker may come from Somaliland (or Puntland) it is open to the respondent to
test that assumption, for example, by means of linguistic analysis. Once the
issue has been put in play, usually in the respondent’s letter of refusal, the
claimant will need to address the issue in any subsequent appellate
proceedings.
532. It may be that the respondent’s stance, both as regards Elmi and appellant ZF, is driven by the difficulty of getting the Somaliland authorities to accept the return of anyone from the United Kingdom to their area. An insight into the somewhat fraught relationship between those authorities and the respondent is provided by reading the judgments in R (on the application of) MH v SSHD [2010] EWCA Civ 1112, concerning a claim of unlawful detention brought by a person from Somaliland, whom the respondent had not been able to return there. But, as we have indicated, from the point of view of an entitlement to international protection under the Refugee Convention or the Qualification Directive, such problems could well be said to be “technical obstacles” within Article 8.
537. In R v Horseferry Road Magistrates Court ex-parte Bennett [1993] UKHL 10, the House of Lords was concerned with whether the trial for criminal offences of Mr Bennett should be halted on the basis that he had been unlawfully abducted from a third country (South Africa). The House of Lords allowed Mr Bennett’s appeal on the basis that the judiciary had a responsibility for the maintenance of the rule of law that embraced the willingness to oversee executive action and to refuse to countenance behaviour that threatened either basic human rights or the rule of law, such as did a criminal trial where the defendant was only present because he had been illegally abducted, with the apparent collusion of United Kingdom police. Appellant ZF submitted that, by the same token, any removal which relied upon her committing an unlawful act could not itself be lawful. The Identity Documents Act 2010, section 4, created a criminal offence of possession of a false identity document with improper intention. A person guilty of an offence under the section was liable to imprisonment for a term not exceeding ten years or to a fine (or both). This reflected the serious way in which Parliament viewed offences regarding such documentation. R v Singh [1999] 1 CR APP R (S) 490 reinforced the fact that a passport was an important document and that it was necessary for the integrity of passports to be maintained. It was, accordingly, a serious offence knowingly to use a false passport, whatever the precise nature of the offence charged in relation to that activity. A similar point was made in R v Adekunle Adebayo [2007] EWCA Crim 878.
538. The appellants also relied upon R v Uxbridge Magistrates, ex-parte Adimi [1999] EWHC Admin 765, which concerned the operation of Article 31 of the Refugee Convention in the context of prosecutions under United Kingdom law for using false travel documentation. Article 31 provides that Contracting States “shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.
542. So far as the old
green passports themselves are concerned, regardless of the fact that appellant
ZF might, if she was within the jurisdiction of the United Kingdom, be
committing a criminal offence, there is no evidence before us to lead to the
conclusion that buying such a passport in a market in southern Somalia
is a
criminal offence under the rule of the TFG or that, even if it is, the matter
is regarded by them as in any way serious. So far as the authorities in Somaliland are concerned, plainly old green passports are regarded as legitimate.
543. There is a somewhat
spurious element to the appellants’ submissions on the “legality” issue of the
old green passport, given the current circumstances in Somalia
. In short, the Tribunal concludes that these “legal” objections are unfounded.
544. But, once we turn from
the law to the facts, it is frankly surreal of the respondent to expect
appellant ZF, a 67 year old woman with no recent experience of living in the
Horn of Africa, to disembark at Mogadishu International Airport, travel into
the city of Mogadishu to Bakara Market (assuming it is open), look for an old
green passport there, or travel to a market in the Al-Shabab-controlled Afgoye
Corridor, if, as might be the case, the vendors of such passports have
relocated there, and then either return to Mogadishu International Airport in
order to fly to Hargeisa, or else undertake a journey by land to Somaliland.
The respondent did not, in fact, energetically advance the option of going back
to the airport, preferring instead to look in detail at the evidence regarding
land journeys, including those undertaken by refugees, moving in groups to Somaliland, and to the evidence of minibuses, which Mr Burns contradicted. We shall have
more to say on this when we look in detail at appellant ZF’s appeal in Part L
of this determination. As a general matter, however, we conclude that, at the
present time, it will in most cases be impracticable for returnees to obtain
old green passports in southern and central Somalia
, in order to make the
journey to Somaliland, because of the dangers involved in acquiring such
documentation.
546. We have already considered
the position of those who, according to the more recent evidence, have been
seeking to move from the south into Somaliland and Puntland, as refugees. We
do not consider that this evidence casts any doubt on the general position we
described at the beginning of this section, regarding the sorts of persons whom
the authorities in Somaliland and Puntland would be willing to see admitted,
particularly in the context of those coming from the United Kingdom. Insofar
as those from the south are concerned, without clan or family connections, they
will be treated as IDPs and be likely to find themselves in IDP camps, the
conditions of which have in the past been categorised as very poor and which
there is no evidence before us to indicate have subsequently improved. Thus,
if appellant ZF or others in her position were to succeed in reaching the
borders of Somaliland or Puntland, without the likes of an old green Somali
passport, they are likely to be treated as another IDP. However, it is also
clear that Somaliland “is less susceptible to widespread humanitarian
emergencies than the rest of Somalia
” (Rightnet Independent Analysis:
Somalia
:
A Situation Analysis and Trend Assessment, August 2003), as, indeed, the map
showing the degrees of problem occasioned by the 2011 emergency attest, as does
the evidence of desperate pastoralists from the south making their way to
Somaliland.
(6) Female genital mutilation
547. According to the
Population Reference Bureau (2010), drawing on figures from 2006, the incidence
of FGM in Somalia
is 97.9%. Broken down by region, urban regions stand at
97.1% and rural at 98.4%. The lowest region is 94.4% and the highest 99.2%.
Other similar studies show a fractionally lower rate but it is universally
agreed to be over 90%. 96.7% of women are cut before the age of 19, according
to the PRB. 66% of those not cut by then will be by the age of 39. Thus, Ms
Short submitted, a female in
Somalia
was not safe even if she reached adulthood
uncut. Cutting can take place at any time from the age of 3.
548. The background
evidence indicates that the predominant type of FGM in Somalia
is “pharoanic”,
categorised by the World Health Organisation as Type III, narrowing the vaginal
opening through the creation of a covering seal by cutting and repositioning
the labia minora and/or the labia majora, with or without removal of the
clitoris (infibulation). Mr Burns, however, gave evidence that, whilst outside
the main cities, FGM was almost 100% pharoanic, into which category he would place
MW’s home of Merka, in the cities he considered it was now 90% “sunna. When I
say “sunna”, I mean anything from partial infibulation to small cuts, depending
on the family’s preference.” Al-Shabab were opposed, according to Mr Burns, to
the pharoanic form but did say that women should practise the “sunna” form.
550. In the conditions
pertaining in Somalia
, Ms Short submitted that it would be impossible for a
mother to conceal the fact that her daughter had not undergone FGM. Mr Burns’
evidence was that family members would know “almost straightaway. Her female
family members would ask, other girls would ask her daughter.” Other
statements from those with experience in
Somalia
were to similar effect,
including those from Sahra Moallim: “Girls will find out whether other girls
have been cut. It is something they talk about among themselves a lot. Girls
show their cut genitalia to one another when they go to the toilet. If a girl
does not show herself or if she refuses to show herself then it will be known
that she has not been cut.”
551. Ms Short relied upon
the US State Department Somali Report on FGM or FGC, together with the evidence
of Mr Burns and Ms Moallim, as indicating that there had been no abatement in
the risk to females, despite the actions of civil society. Thus, the USSD
concluded that a campaign launched within Somalia
prior to the overthrow of
Siad Barre fell away with the collapse of the Somali state. Ms Moallim, for
her part, was currently campaigning to have FGM included among the violations
of human rights based on the agenda of a Somali version of the South African
Truth and Reconciliation Commission, which was being talked about in
Somalia
. She had, however, met with much resistance from Somali human rights
organisations, which indicated the depth of a Somali’s attachment to the
practice of FGM.
552. As in other countries
where the practice is widespread, in Somalia
FGM is regarded as a rite of
passage, upon which a girl’s future marriage prospects depend (Almroth
2005:14). The USSD Report recorded that many Somalis mistakenly viewed the
procedure as a religious obligation; but the concept of “family honour” was
also involved, with FGM being intertwined with notions of virginity. A woman
active in Somali human rights work opined that “a lot of Somali people
mistakenly believe that it is un-Islamic for girls not to undergo FGM”. There
was thus, according to Dr Mullen, “tremendous social pressure for families to
conform to this practice both in Europe and in
Somalia
. Dr Hammond agreed that
“social pressure to have the procedure done to one’s daughters is very strong
in
Somalia
, as an uncircumcised woman is often not considered to be
marriageable and to bring shame on her family”. According to Ms Moallim a
woman who resisted having her daughter cut would be seen as rejecting Somali
tradition and as importing “gaallo (non-believer) ideas into
Somalia
, as having abandoned her religion and as preventing her daughter from following her
religion”.
553. The respondent
submitted that the evidence did not, in fact, show that in general a mother
opposed to FGM would be incapable of withstanding societal pressures to have it
done to her daughter. Reliance was placed on para 2.19 of the COIS Report on
Somalia
, where a Somali woman was recorded as stating that she was able to
withstand pressure from her mother-in-law to have her daughter circumcised,
albeit that the informant’s refusal led to her husband divorcing her and
cutting off contact with his daughters. Despite this making life “hard in the
camp” for the informant, she stated that she would never go back on it, despite
the fact that the girls were “often bullied in school”. The informant’s
biggest fear was that “someone from my family will take my daughters one night
and try to circumcise them. I have no protection and no man in my life to
protect us.”
554. Perhaps more helpful
to the respondent’s case was the Landinfo report on female genital mutilation
of December 2008 which recorded that “certain trends indicate a positive shift
with regard to general mutilation in Somalia
”. According to this, the custom
is mainly a female affair and the young generation of men between 15 and 26 do
not regard FGM to be a prerequisite for marriage. Somali sources referred to
“a claim that given the fact that men comply with the decisions women make, it
should be possible for mothers to oppose FGM”. By contrast, however, the World
Bank and other sources emphasise that men “carry major responsibility for the
continuation of the practice”. For a majority of the population, FGM remained
a prerequisite for marriage, with prospective husbands demanding a circumcised
wife. Since payment of a dowry is still common, the fathers of daughters
played a key role in encouraging FGM, in order to get the dowry.
557. It is, of course,
established law that FGM “constitutes treatment which would amount to
persecution within the meaning of the Convention”, whatever form of it is
practised and that, having regard to the sexually discriminatory nature of the
practice, its infliction upon a woman engages the Refugee Convention by
reference to the “particular social group” category (K and Fornah v
Secretary of State for the Home Department [2006] UKHL 46).
Notwithstanding the interesting evidence about Somali men complying with the
decisions that women make, we can see no reason to refuse to find the relevant
PSG in Somalia
, when it has been found in all the other African countries in
which the Tribunal or the higher courts have had occasion to examine the
matter.
558. Likewise, we have no difficulty in finding that a Somali mother may suffer persecution and treatment in breach of her own Article 3/15(b) rights if her daughter is subjected to FGM against the mother’s wishes. As the AIT found in FM (FGM) Sudan CG [2007] UKAIT 00060:-
“Given the first appellant’s abhorrence of FGM, any infliction of it upon either of her daughters is, we find, reasonably likely to have so profound an effect upon the first appellant as to amount to the infliction on her of persecutory harm. In the light of our finding as to the nature of the particular social group in the present case, it follows that the first appellant is at real risk of persecution for a Refugee Convention reason (Katrinak v Secretary of State for the Home Department [2001] EWCA Civ 832: Recital 27 to Council Directive 2004/83/EC).”
“11. The parent could nevertheless be considered a principal applicant where he or she is found to have a claim in his or her own right. This includes cases where the parent will be forced to witness the pain and suffering of the child, or risk persecution for being opposed to the practice.
12. Even where the parents have been in the country of asylum for some time, a well-founded fear on behalf of the child or because of the parents’ own opposition to FGM can arise upon the birth of a daughter post-flight. The fact that the applicant did not demonstrate this conviction or opinion in the country of origin, nor act upon it, does not itself mean that a fear of persecution is unfounded, as the issue would not necessarily have arisen until then. The birth of a daughter may, in these circumstances, give rise to a sur place claim. If it is held that the opposition or fear of FGM is a mere artifice for the purpose of creating grounds for asserting a fear of persecution, a stringent evaluation of the well-foundedness of the fear is warranted. In the event that the claim is found to be self-serving, but the claimant nonetheless has a well-founded fear of persecution, international protection is required.”
560. The prevalence of FGM
in Somalia
is, we find, so great that an uncircumcised, unmarried Somali woman,
up to age 39, will in general be at real risk of suffering FGM. The risk will
obviously be at its greatest where both parents are in favour of FGM.
Conversely, where both parents are opposed to it, the question of whether the
risk will reach the requisite level will need to be determined by reference to
the extent to which the parents are likely to be able to withstand what are, as
a general matter, strong societal pressures (from both men and women) in
Somalia
for the procedure to be carried out on their daughter. Unless the
parents are from a socio-economic background that is likely to distance them
from mainstream social attitudes, or there is some other particular feature of
their case (such as living in a place where – exceptionally - an anti-FGM
stance has taken hold) the fact of parental opposition may well as a general
matter be incapable of eliminating the real risk to the daughter that others
(particularly relatives) will at some point inflict FGM on her.
564. In this regard, Ms Short sought to rely on Shah and Islam v Secretary of State for the Home Department [1999] UKHL 20, where Lord Hoffman found that the causal requirement in Article 1(A) of the Refugee Convention could be satisfied either by the persecution or the lack of protection being “for reasons of” a Convention ground. That is, of course, so; but it does not meet the issue with which we are concerned, where the person who will be immediately responsible for the harm is seeking refugee protection by reference to that very harm.
566. We spoke in Part H of
a spectrum of cases, of which true willingness, albeit stemming from social
conditioning, stands at one extreme, just as the case of duress stands at the
other. In the context of Somalia
, the evidence, as we have indicated, suggests
in general that there will be a very high degree of societal pressure. In
particular, the evidence of Mr Burns and others that mothers who refuse to have
their daughters circumcised could well fall outwith the ambit of any clan
protection strikes us, in the present circumstances, as likely to be highly
significant for the mother, raising the spectre of destitution, at least in
some cases. Furthermore, although there is some indication that, amongst
younger Somali men, the position might be changing, the preponderance of the
evidence still points towards an uncircumcised woman having poor prospects of
marriage. The socio-economic fears that that may engender in the mother are
also, as a general matter, likely to be great.
Part J
ASSESSING THE NEGATIVE PULL OF LIES: MA (SOMALIA
)
568. In his submissions on
behalf of the UNHCR, Mr Hickman dealt in some detail with the judgment of the
Supreme Court in MA (Somalia
) v Secretary of State for the Home Department
[2010] UKSC 49. MA was a citizen of
Somalia
, a member of the Isaaq clan who
came here illegally in 1995 and in 1998 was sentenced to eight years’
imprisonment for rape and indecency with a child. The ensuing legal
proceedings concerning the respondent’s attempt to deport MA were protracted,
but on 1 July 2009 the AIT dismissed MA’s appeal. That decision was reversed
by the Court of Appeal in HH & Others (MA being one of the “Others”)
but restored by the Supreme Court.
569. MA (Somalia
) is
of general importance, dealing as it does with the frequently-encountered
question of to what extent an appellant who has been found to have told lies
should have that finding held against him or her, in determining entitlement to
international protection:-
“21. … The task of sorting out truth from lies is indeed a daunting one. It is all too common for the AIT to find that an appellant’s account is incredible. And yet there may be objective general undisputed evidence about the conditions in the country to which the Secretary of State wishes to send the appellant which shows that most of the persons who have the characteristics of, or fall into the category claimed by, the appellant will be at real risk of treatment contrary to Article 3 of the ECHR or persecution for a Refugee Convention reason (as the case may be), but that a minority of these, because of special circumstances, are not subject to such risk.”
570. In GM (Eritrea) and Others [2008] EWCA Civ 833 the Court of Appeal addressed the case of an Eritrean asylum seeker, who had not been found credible as to her claim to have left Eritrea illegally, but where the background evidence indicated that only limited classes of person were allowed to leave that country legally. At [53] Laws LJ (with whom Dyson LJ agreed) held that the fact that it was reasonably likely that any 17 year old girl from Eritrea, about whom nothing else relevant was known, left the country illegally “does not entail the conclusion that this particular 17 year old girl did so. The reason is that the probability that a particular person has or has not left illegally must depend upon the particular facts of her case… There may indeed be a general probability of illegal exit by members of a class; but the particular facts may make all the difference.”
571. At [54] Laws LJ held
that the “position would only be otherwise if the general evidence was so solid
as to admit of only fanciful exceptions”. At [31] of MA (Somalia
), Sir
John Dyson considered that what “Laws LJ was saying at para 54 was that, where
a claimant tells lies on a central issue, his or her case will not be saved by
general evidence unless that evidence is extremely strong. It is only evidence
of that kind which will be sufficient to counteract the negative pull of the
lie.” Much, however, depended on the bearing that the lie had on the case. It
was for the Tribunal to decide what weight to give to the lie, as well as to
all the other evidence in the case, including the general evidence [32]. As
was made plain in the context of criminal law in R v Lucas [1981] QB
720, the judicial fact-finder had to be alive to the fact that “people lie for
many reasons” [32]. Thus, “the significance of lies will vary from case to
case” [33].
573. Mr Hickman submitted
that MA (Somalia
) made it clear that a Tribunal should adopt the
following approach:-
“First, it should decide on the evidence and circumstances other than the evidence given by the individual concerned what the likelihood is of him or her being without sufficient protection if returned to Place A (evidence A);
Secondly, the Tribunal should consider whether the individual’s evidence establishes a reasonable possibility that he or she has no protection on return to Place A (evidence B); and
If the individual has told a lie about his or her connections to Place A, this may be of ‘no great consequence’ or it may suggest (to a greater or lesser extent) that he or she does benefit [from] protection in Place A and is trying to conceal it. In this latter situation the lie will have a ‘negative pull’ as evidence that such protection exists … and the Tribunal must consider whether it is sufficient to undermine the other evidence (including the statistical likelihood), i.e. Evidence A, that the individual is not able to benefit from protection on return.” (Mr Hickman’s emphases)
575. We do not, for our
part, consider that there is much to be gained by seeking to construct a
prescribed set of steps from MA (Somalia
), particularly if they might
lead to a “mechanistic” rather than a holistic approach. Fact-finders in this
jurisdiction are well aware of the potential dangers involved in approaching
the evidence before them in a particular sequence, notwithstanding the fact
that one “must start somewhere”.
577. It will be for
judicial fact-finders to decide, on the basis of the totality of the evidence
before them, whether, to the extent that this country guidance remains
authoritative (in terms of Practice Direction 12), the case before them is one
where, notwithstanding an appellant’s lies, it would be “fanciful” to conclude
that the appellant falls within one of the various exceptions we have
identified in the country guidance in the preceding Part of this
determination. We should, however, refer back to what we have said earlier
regarding the respondent’s closing submissions, which were to the effect that
someone who is found to have told lies about his or her experiences in southern
or central Somalia
has failed to discharge the burden of showing that they are
not, in reality, from Somaliland or Puntland. In short, the issue of coming
from Somaliland or Puntland will need to have been “in play” in the appellate
proceedings.
Part K
SUMMARY OF LEGAL FINDINGS
581. There is nothing
jurisprudentially problematic with the Strasbourg Court’s judgment in Sufi
& Elmi, as regards Article 3 of the ECHR. The Court’s finding, that the
predominant cause of the humanitarian crisis in southern and central Somalia
was due to the current warring parties, meant that the high threshold
(identified, inter alia, in N v United Kingdom) for finding an
Article 3 violation in the case of naturally occurring phenomena did not need
to be met (paragraphs 124 – 130).
588. On the assumption that
Al-Shabab’s likely behaviour towards those who transgress its rules is as found
in this determination, the position is as “extreme” as the factual basis in RT
(Zimbabwe). In the light of RT, a person from an Al-Shabab area who
can show they do not genuinely adhere to Al-Shabab’s ethos will have a good
claim to Refugee Convention protection, once outside Somalia
(subject to
internal relocation and exclusion clause issues), regardless of whether the
person could and would “play the game”, by adhering to Al-Shabab’s rules. As
can be seen from a comparison with Sufi & Elmi, the effect of RT
is, accordingly, to take the Refugee Convention beyond the comparable ambit of
Article 3 ECHR protection (paragraphs 207 – 217 and 491 to 496).
593. In assessing the
effect of an appellant’s lies (whether to the Secretary of State or a judicial
fact-finder), it is unnecessary to construct a prescribed set of steps from the
judgments of the Supreme Court in MA (Somalia
), particularly if they
might lead to a “mechanistic” rather than a holistic approach. The significance
or “negative pull” of the lie will possibly depend not only on the strength of
the background evidence but on whether the lie – looked at in its own terms –
is about an issue that is central to the disposition of the appeal. Where a
person tells lies about issues which that person thinks are important to their
claim but which, because of the passage of time or otherwise, are not, it is
open to the Tribunal, given the earlier lies, to approach with caution the
person’s evidence regarding matters that are central to the current claim (paragraphs
568 – 578).
PART L
COUNTRY
GUIDANCE ON SOMALIA
Mogadishu
594. Despite the withdrawal in early August 2011 of Al-Shabab conventional forces from at least most of Mogadishu, there remains in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad. Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. The significance of this category should not, however, be overstated and, in particular, is not automatically to be assumed to exist, merely because a person has told lies.
595. The armed conflict
in Mogadishu does not, however, pose a real risk of Article 3 harm in respect
of any person in that city, regardless of circumstances. The humanitarian
crisis in southern and central Somalia
has led to a declaration of famine in
IDP camps in Mogadishu; but a returnee from the United Kingdom who is fit for
work or has family connections may be able to avoid having to live in such a
camp. A returnee may, nevertheless, face a real risk of Article 3 harm, by
reason of his or her vulnerability.
Southern
and central Somalia
, outside Mogadishu
597. Outside Mogadishu,
the fighting in southern and central Somalia
is both sporadic and localised and
is not such as to place every civilian in that part of the country at real risk
of Article 15(c) harm. In individual cases, it will be necessary to establish
where a person comes from and what the background information says is the
present position in that place. If fighting is going on, that will have to be
taken into account in deciding whether Article 15(c) is applicable. There is,
likewise, no generalised current risk of Article 3 harm as a result of armed
conflict.
598. In general, a
returnee with no recent experience of living in Somalia
will be at real risk of
being subjected to treatment proscribed by Article 3 in an Al-Shabab controlled
area. “No recent experience” means that the person concerned left
Somalia
before the rise of Al-Shabab in 2008. Even if a person has such experience,
however, he or she will still be returning from the United Kingdom, with all
that is likely to entail, so far as Al-Shabab perceptions are concerned, but he
or she will be less likely to be readily identifiable as a returnee. Even if he
or she were to be so identified, the evidence may point to the person having
struck up some form of accommodation with Al-Shabab, whilst living under their
rule. On the other hand, although having family in the Al-Shabab area of return
may alleviate the risk, the rotating nature of Al-Shabab leadership and the
fact that punishments are meted out in apparent disregard of local
sensibilities mean that, in general, it cannot be said that the presence of
family is likely to mean the risk ceases to be a real one.
602. For someone at
real risk in a home area in southern or central Somalia
, an internal relocation
alternative to Mogadishu is in general unlikely to be available, given the risk
of indiscriminate violence in the city, together with the present humanitarian
situation. Relocation to an IDP camp in the Afgoye Corridor will, as a general
matter, likewise be unreasonable, unless there is evidence that the person
concerned would be able to achieve the lifestyle of those better-off
inhabitants of the Afgoye Corridor settlements.
605. Travel by land
across southern and central Somalia
to a home area or proposed place of relocation
is an issue that falls to be addressed in the course of determining claims to
international protection. Such travel may well, in general, pose real risks of
serious harm, not only from Al-Shabab checkpoints but also as a result of the
present famine conditions. Women travelling without male friends or relatives
are in general likely to face a real risk of sexual violence.
606. An issue that may
have implications for future Somali appeals is the availability of air travel
within Somalia
(including to Somaliland). Flying into Mogadishu International Airport is sufficiently safe. There is no evidence to indicate a real risk to
commercial aircraft flying to other airports in
Somalia
.
Somaliland and Puntland
Female genital mutilation
609. The incidence of
FGM in Somalia
is universally agreed to be over 90%. The predominant type of
FGM is the “pharaonic”, categorised by the World Health Organisation as Type
III. The societal requirement for any girl or woman to undergo FGM is strong.
In general, an uncircumcised, unmarried Somali woman, up to the age of 39, will
be at real risk of suffering FGM.
Part M
Re-making the decisions in the appeals
Appellant
AMM
611. Appellant AMM
has been
comprehensively disbelieved in his evidence, save that he comes from Jowhar.
It is common ground that those negative credibility findings stand. Amongst
the undoubted problems with the credibility of appellant
AMM
is the fact that
he gave a false name to the United Kingdom authorities when he made his third
asylum application. His assertion in oral evidence that he was forced to do so
struck us as absurd.
612. In general, having had
the opportunity of hearing and seeing appellant AMM
give oral evidence, we
considered him to be an extremely poor witness. His evidence regarding his
alleged religious differences with Al-Shabab bore every indication of having
been manufactured for the purpose of the present proceedings. He entirely
failed to persuade us that he held any genuine religious or similar beliefs,
which were likely to be stifled, restricted or otherwise interfered with by
Al-Shabab. Appellant
AMM
is, in short, a cynical opportunist, intent on
securing status in the United Kingdom by any means he considers likely to
achieve that result, regardless of whether those means involve lying. Having
said this, the previous finding, that he is from Jowhar, stands. Jowhar is in
an Al-Shabab-controlled area. We are also prepared, just, to accept that
appellant
AMM
has been outside
Somalia
since 2000. He has certainly been here
since 2005 and the respondent does not appear to take issue with the fact that
appellant
AMM
was rescued in the Mediterranean from a sinking vessel. He has,
accordingly, been away from
Somalia
for a long time, certainly long before the
rise of Al-Shabab. Appellant
AMM
’s claim not to know the whereabouts of his
wife and 12 year old child struck us as a further instance of his mendacity,
since he has no doubt calculated that it would be better from his point of view
to assert that he was no longer in touch with them. Given his general lack of
credibility and the ease with which contact can be made over mobile telephones
with those in
Somalia
, we consider that the truth of the matter is that
appellant
AMM
’s wife and children are living in Jowhar, and that he knows this
full well.
613. Does the “negative
pull” of appellant AMM
’s lies reach the point where it overrides the general
evidence regarding risk to returnees to Al-Shabab areas from the United Kingdom for those who have been away from
Somalia
for a significant period? The issue is
whether the extreme likelihood that appellant
AMM
has close family members in
Jowhar would facilitate his return there, removing any real risk that he would
suffer the serious adverse attention of Al-Shabab; in particular, as a
perceived spy. We do not consider that it would. The evidence before us as to
Al-Shabab executions, beatings and so forth, does not disclose that the victims
of these atrocities were lacking family members in the areas concerned. Whilst
it plainly might be possible for appellant
AMM
’s family to liaise with the then
current Al-Shabab commander, in advance of appellant
AMM
’s return, the
capricious and unpredictable nature of Al-Shabab rule means that we cannot
conclude that this would eliminate a real risk to appellant
AMM
. On the
contrary, the highlighting of his having come from the United Kingdom may have the opposite effect.
614. Added to this is the
reasonable likelihood, given the geographic spread of Al-Shabab’s control in
southern and central Somalia
, diminishing though it is, that appellant
AMM
would have to cross an Al-Shabab area on his way to Jowhar. Even if he has
family etc. in Jowhar, they would be unlikely to be able to smooth his passage
through such intermediary areas. Those operating such checkpoints are
reasonably likely to observe from appellant
AMM
’s behaviour that he has no
recent experience of
Somalia
, which may very well lead to him being identified
or at least assumed to be from the West.
615. It is reasonably
likely that any serious harm that Al-Shabab would inflict upon appellant AMM
would be motivated by that organisation’s Manichean view of religion and that
appellant
AMM
would suffer because – irrespective of his own absence of any
religious belief – he would be perceived as a religious apostate.
616. Although, in view of
that finding, it is immaterial, we did not believe appellant AMM
when he sought
to persuade us that he had some kind of conscientious objection to paying taxes
to Al-Shabab. Once again, his oral evidence bore every appearance of being
concocted.
617. The respondent did not
point to any other areas of central and southern Somalia
, outside Mogadishu, to which appellant
AMM
might go, where Al-Shabab are not in control. That there
are such areas is, however, apparent from the evidence. In the circumstances,
we do not consider that appellant
AMM
could, at the present time, reasonably or
without undue hardship relocate to such an area. The likelihood is, bearing in
mind the current humanitarian emergency, that appellant
AMM
would struggle to
survive. This is so, notwithstanding the fact that he could avail himself of
an initial £500 and, possibly, a further £1,000, from UKBA’s relocation
package. Coupled with a family or other support network, such as that provided
by a clan, such financial assistance may well render internal relocation
reasonable, according to Januzi standards. On its own, however, we do
not consider that it would, in the case of appellant
AMM
.
618. Again, despite the
negative pull of his lies, we do not find that, looking at the evidence
overall, appellant AMM
has failed to show a reasonable likelihood that,
wherever else he might go in central and southern
Somalia
, he would have such
family/clan connections.
619. The same is true of
relocation to Mogadishu. We do not consider that the negative credibility of
appellant AMM
is so strong as to lead us to conclude that he would be able to
live there in the kind of circumstances we have described as being the current
exception to the general Article 15(c) risk to returnees to that city.
620. Appellant AMM
’s appeal
accordingly falls to be allowed on refugee grounds. He is not entitled to
humanitarian protection. His appeal succeeds on Article 3 ECHR grounds by
reference to the risk to him from Al-Shabab.
Appellant MW
623. What was revealing,
however, was her oral evidence regarding her attitude towards female
circumcision. Appellant MW’s answers are recorded in Appendix 1 to this
determination. We consider that they demonstrate clearly appellant MW’s
acceptance of the practice in Somalia
. Indeed, we conclude that the only
factor that would preclude appellant MW from circumcising her daughter in the United Kingdom is the criminal proscription on the practice that exists here. Although, as
we have seen from the background evidence, societal pressures in
Somalia
to
have FGM performed can be severe, appellant MW’s decision to have her daughter
circumcised would be likely to be made long before any such pressures arose.
626. Having said all this,
we do accept that appellant MW has maternal feelings towards her children and
that, if forcibly removed to Somalia
, she is at least reasonably likely to seek
to take her children with her, in order not to be parted from them. We were
presented with no evidence to suggest that her partner or anyone else would, in
those circumstances, seek to prevent the children’s departure with appellant
MW.
627. Accordingly, for the
purposes of section 84(1)(g) of the 2002 Act, we approach appellant MW’s appeal
on the hypothesis that she would find herself in Somalia
with her three
children. In such circumstances, it is, we find, possible that her partner
would choose to accompany them; but it is sufficiently unclear to conclude that
there is a reasonable likelihood of MW and her children going to
Somalia
alone.
628. In view of what we
have found to be the true attitude of appellant MW towards female circumcision,
it is evident that she cannot succeed in showing that she is a refugee on the
basis of the real risk that her daughter would be circumcised. Appellant MW is
highly likely either to be the perpetrator of such mutilation or to procure it
from others (see paragraphs 561 et seq above). We have formed our
conclusions of this aspect of appellant MW’s evidence having regard to the
report of the independent social worker, Ms Cox, who claimed that appellant MW
“became visibly upset when talking about her fear of [b]eing subject to FGM if
she were to return with her to Somalia
”. We witnessed no such distress during
the quite lengthy questioning of appellant MW on this issue in the present
proceedings. Whilst we are prepared to accept that this is what Ms Cox saw,
appellant MW’s thorough lack of credibility in other areas of her claim leads
us to conclude that she was seeking to deceive the social worker. What we do
accept, however, as we have said, and as Ms Cox goes on to record, is that
appellant MW “could not consider leaving [the children] in the UK if she was returned to
Somalia
but equally feared for their safety there”.
629. Leaving aside FGM, in
the light of our findings regarding MW’s maternal feelings, it is plain that
she would be very likely to experience feelings of anguish, amounting to
Article 3 ill-treatment, if she were to see her children severely harmed or
suffering from severe malnutrition, somewhere in southern and central Somalia
.
As we have found, the situation in large parts of that region are such as to
make such a fear well-founded. Whilst we accept that appellant MW could well
receive money transfers, not only from UKBA but also from her relative in
Canada, the general insecurity faced by women, with no male protector would, we
find, be significantly aggravated in the case of appellant MW, by reason of her
long absence from
Somalia
and her consequent lack of coping mechanisms, such as
women heads of households have had to forge in recent years.
630. In view of our adverse
credibility findings, we consider it very likely that appellant MW has some
(albeit extended) family in Merka; but that is an area controlled by Al-Shabab
and we accordingly make similar findings in relation to appellant MW as we have
in the case of appellant AMM
. Like him, appellant MW has been outside
Somalia
for a significant period of time and would be returning from a Western country.
There is, accordingly, a real risk of her being perceived as an apostate. We
do not, however, accept, any more than we did in the case of appellant
AMM
,
that appellant MW has any genuine religious etc beliefs that are reasonably
likely to be interfered with by Al-Shabab’s socio-religious requirements. Her
children are far too young to be subject to forced recruitment and we do not
consider that appellant MW has any conscientious objection to the payment of
“taxes”.
631. As a single woman with
children, appellant MW would clearly be in a heightened risk category from the
point of view of sexual violence, which is prevalent in southern and central Somalia
. We do not, however, find that she is at real risk of Article 15(b) ill-treatment
or persecutory ill-treatment by reason of having to wear oppressively heavy
clothing in an Al-Shabab area. As we have found, the evidence that Al-Shabab
imposes such requirements is too sporadic to give rise to a generalised real
risk.
632. Appellant MW’s travel
to Merka from Mogadishu International Airport is likely to involve serious
problems, including those faced at Al-Shabab checkpoints. As with appellant
AMM
, we find that those operating the checkpoints are reasonably likely to
discern from appellant MW’s appearance, and those of her children, (leaving aside
issues of clothing) that she has no recent experience of
Somalia
and is likely to be from the West.
633. As with appellant AMM
,
whilst it is theoretically possible that appellant MW could relocate to a
non-Al-Shabab area in southern or central
Somalia
, no such potential area has
been identified by the respondent. Furthermore, there remain the problems of
getting to such an area and the reasonableness of conditions there, given the
general humanitarian situation and the likelihood (despite appellant MW’s lack
of credibility) that she would not have family or clan protection.
635. At [91] of Ms Short’s
closing submissions, she submitted that the right to education of appellant
MW’s children would be violated by returning them to Somalia
. Given, however,
that the only hypothesis with which we are concerned is that in section
84(1)(g) of the 2002 Act, the children’s right to education is not an issue in
the present proceedings.
Appellant ZF
637. Appellant ZF is, at
67, the oldest of the five appellants; she is also the most recent arrival in
this country, having reached here in September 2009. On the basis of the
original Tribunal’s undisturbed findings of fact, appellant ZF comes from
north-west Somalia
, which, as we have indicated, in this context means Somaliland. The original Tribunal found that there was a “chance that she has lived in Mogadishu”, although she did not originate from there. The overwhelming likelihood is,
accordingly, that appellant ZF is an Isaaq.
638. We had the benefit of
hearing and seeing appellant ZF give evidence. She cut a poor figure. She
sought to resile from an important element of her evidence regarding her
alleged rape by Al-Shabab militia. She failed to come up to proof, in terms of
her written statement, in relation to alleged religious differences with
Al-Shabab. She gave inconsistent evidence as to when her daughter was supposed
to have left Somalia
. She attempted to exaggerate problems regarding her
health, mentioning a variety of conditions from heart problems to severe
arthritis, which her GP had not seen fit to refer to in his letter. She could
give no credible explanation for not being in contact with her daughter. She
could give no credible explanation of how, according to her, she had been able
to make a long journey on her own from Ethiopia to the United Kingdom. She persisted in her assertion, in the face of the evidence (including linguistic
evidence) that she was not from Somaliland. Her evidence as to why she had not
left with her daughter involved appellant ZF contradicting herself as to
whether she had money (albeit in the form of jewellery which she could have
sold). She claimed there was no Somali community in Newcastle, when her
doctor’s letter stated that she had specifically requested being moved to that
city in order to be near the Somali community. Her claim to have been raped by
Al-Shabab, who were also supposed to have killed her husband, was intensely
problematic, given that she said this happened in 2001, before the emergence of
that organisation.
641. However, appellant ZF
will be a refugee if there is a real risk of her being persecuted for a Refugee
Convention reason in the country of her nationality; namely, Somalia
, at or
after the point of her return. In order to get an old green Somali passport
(see above) appellant ZF would have to run the real risk of Article 15(c) harm,
if such passports are still available in Bakara Market (and assuming it would
be open for business), or Article 3 and Refugee Convention harm, if she has to
venture into the Afgoye Corridor. The respondent submitted that there was, in
fact, evidence from appellant ZF that she had lived for a significant period of
time in Mogadishu and also been in Afgoye. The previous Tribunal, however,
plainly did not believe anything more than that there was a chance appellant ZF
had at some time been in Mogadishu. Her whole account of problems in Mogadishu and Afgoye, which were central to appellant ZF’s claim before that Tribunal, was
found (quite properly) to be lies. We consider that it is taking the
consequences of those lies too far to hold that appellant ZF has, in reality,
been able to live without difficulties in those places.
643. As we have already
found by reference to the background evidence, appellant ZF’s overland route to
the borders of Somaliland is fraught with dangers. The evidence does not
disclose that appellant ZF would be able to avoid a real risk of serious harm.
In particular, we agree with Mr Schwenk at [31] “that when travelling through
Al-Shabab-controlled areas she will be perceived by Al-Shabab to have
transgressed Islamic mores and will thereby be at risk”. The Convention ground
is perceived religious opinion, albeit that we do not consider appellant ZF has
any genuine religious or conscientious beliefs that are likely to be interfered
with by Al-Shabab. In this regard, we do not consider it necessary to repeat
what we have said regarding appellant AMM
and appellant MW, save that there is
nothing to suggest that appellant ZF’s age would remove any real risk to her.
Appellant FM
645. Appellant FM, who
arrived in the United Kingdom in July 2006, from Kenya, told Immigration Judge
Courtney that he was from a minority clan (Ashraf), had lived his entire life
up to leaving Somalia
in the district of Hamar JaabJab, Mogadishu, had married
a woman from the majority Hawiye clan and thereby incurred the animosity of his
in-laws, causing him to leave. The only part of this evidence that survived
the Immigration Judge’s well-founded adverse credibility findings was that
appellant FM had lived in Hamar JaabJab.
648. Appellant FM said that
he had last spoken to his wife five weeks ago and that his father-in-law had
asked him to release his wife from the marriage so that she could marry someone
else. They were now said to live in Ceelasha Biyaha, an area outside Mogadishu that was controlled by Al-Shabab. He had tried to call his wife back but there
had been no reply. He confirmed that he had left Somalia
because his
father-in-law opposed the marriage and now wanted appellant FM to divorce.
654. Since appellant FM
does not have a well-founded fear of persecution for a Refugee Convention
reason in his home area, it is unnecessary to determine whether, for the
purposes of that Convention, he has an internal relocation alternative, either
in southern or central Somalia
or in Somaliland/Puntland. The respondent,
however, contended that such an internal relocation was feasible, as a means of
avoiding Article 15(c) harm in Mogadishu.
655. We reject that
submission, as regards southern and central Somalia
, for the same reasons as we
have given in relation to the previous appellants. As for Somaliland and
Puntland, we have already indicated why we do not consider that such a
relocation alternative can properly be raised at this stage of the appellate
proceedings. On this issue, Mr Symes drew attention to the judgment of Sedley
LJ in Daoud v Secretary of State for the Home Department [2005] EWCA Civ 755, that:-
“Internal relocation is not, as Home Office presenting officers seem often to think it is, a throw-away submission in case other arguments fail. It is a serious and frequently problematical issue, requiring proper notice, proper evidence and proper argument, and it is governed by legal tests to which this court has more than once devoted attention.” [12]
Appellant AF
659. Like appellant AMM
,
appellant AF has extensive experience of the appellate system in the United Kingdom. This is the second occasion on which his appeal has been remitted to a
tribunal by the Court of Appeal. Previous judicial findings of fact, undisturbed
by the circumstances of the remittals, establish that appellant AF is a member
of the Madhiban clan (a Migdan) who, although being born in Merka and having
lived there until 1989, made his home in Mogadishu, in the districts of
Shangani, Hamar Weyne and Hamar JaabJab (all of which at the hearing were under
TFG/AMISOM control). Although he experienced discrimination and some minor
harassment during the time of the clan conflicts, he was never physically
harmed. He enjoyed the protection of a Habargidir man, who was appellant AF’s
clan patron. Immigration Judge Adio did not believe that the patron had been
killed, contrary to the assertion of appellant AF.
660. Appellant AF was able
to raise money with the assistance of his patron, by selling appellant AF’s
mother’s land. Appellant AF left his wife and children at home, went to Bakara
Market, made travel arrangements and then left Somalia
for the United Kingdom. This was in 2001.
661. Like appellant FM,
appellant AF told us in oral evidence that he would move with his wife and
children to another area of Mogadishu, when the fighting in their area became
intense. He confirmed that during the fighting he had never left the city.
Appellant AF claimed not to know where his family were and that he had no
connections with his clan. Looking at the evidence overall, including the
previous judicial findings, we do not consider that there is any credibility in
those assertions. We consider that the truth of the matter is that appellant
AF’s family remain in Hamar JaabJab, that he knows this full well and that he
is likely to be in touch with them by mobile telephone. Appellant AF claimed
in oral evidence that he had no phone cards and no money to spend on calling
persons in Somalia
, but then undermined that assertion by saying that “if he
did call they would ask him for money”. He then changed his evidence again, by
asserting that the reason he did not speak to them was that “he did not know
their numbers”.
664. We make the same
findings regarding other areas of southern and central Somalia
and the possibility of relocation to Somaliland and Puntland, as we have just made in
relation to appellant FM. Finally, there is on the evidence no real risk of
appellant AF suffering Article 3 harm in Mogadishu at the present time.
Signed Date
Upper Tribunal Judge P R Lane
Summary of Oral Evidence
Appellant AMM
1. The appellant gave his evidence in Somali through the court interpreter and confirmed that he lived in Manchester and that he had made the statement contained in the bundle. He stated that it had been read back to him in Somali and that the contents were true.
2.
The
appellant was asked for his opinion of Al Shabab. He stated that the difference
between himself and Al Shabab was the interpretation of the religion. He stated
that according to Islam, killing and taxation was prohibited and so Al Shabab
were acting against Islam. He stated that they entered other people's houses by
force and took away televisions and radios. He was asked what he had to say
about the claim that Al Shabab were killing in the name of Islam. He stated
that according to his religion, only God could give and take away life. He said
Somalia
had been a Muslim country for centuries that now Al Shabab had a
different version of Islam which they were using for their own interests. He
stated that they interpreted the religion in a different way. Islam meant peace
and the killing and execution of people was not allowed. He stated that the
collection of taxes was not right, particularly when it was used to buy weapons
and wage wars against civilians. He was asked how he would feel if he was
stopped at a checkpoint and asked to pay money. He stated that he would feel
guilty because he would believe that he had committed a crime against God by
paying money. He was asked to explain his reply and he stated it was because
that money would be used to kill others.
3.
The
appellant was then cross examined by Mr Staker. He confirmed that he was born
in January 1977 and that he was 34 years old. It was put to him that he was
healthy and able bodied. He replied that he may look that way but he was stressed.
It was acknowledged that he might find the hearing stressful but it was pointed
out that there was no medical evidence as to any ongoing health problems. He
stated that he had been stressed for six years. He agreed that he had had
several previous appeals. He confirmed he arrived in 2005 and that after the
refusal of his first appeal he had gone to Ireland and claimed asylum there. He
stated that it had not been his intention but when he had lost his appeal and
was told to leave the country he went there and made a claim. He had been told
at Dublin that he had to return to the UK and that was what had happened and he
then had several more appeals. It was put to him that the Tribunal had accepted
he was from Jowhar but that the rest of his account had been rejected. He said
he disagreed with the findings. He was asked whether he had any family in Somalia
and he said he did not. He had three brothers in Libya and although they used to
have contact with each other, that was no longer possible because of the
ongoing problems in Libya. He stated that he did not believe there was any
communication with people in Libya and he said a lot of Somalis had been killed
there because they were suspected of working for Gaddafi’s forces. He stated
that he had two sisters working as cleaners in Saudi Arabia and that he was in
contact with them. He had also been in contact with his wife before his
departure for Ireland but he no longer knew where she was. He stated he had no
relatives at all in
Somalia
as his father had been an only child and so had his
mother. He was asked about clan connections. He stated that there were always
clan connections but it was not possible to rely on them. He stated he had
considered committing suicide many times. He had some Somali friends here and
he watched Somali news on the television.
4.
The
appellant confirmed that he had heard of the voluntary assisted return program
and he was aware of the assistance offered under it. He was asked whether he
would accept that assistance if he returned to Somalia
. He replied that he had
not come to the UK to make money but to save his life. He stated that if
Somalia
was stable he would go voluntarily. He did not want any money. He was asked whether
he was aware that 80% of the population of Mogadishu lived under TFG control.
He asked whether Mr. Staker was suggesting that Mogadishu was safe. The
question was repeated. He replied that he believed that Mr. Staker was
misinformed. He stated that the TFG were only in control in Villa
Somalia
and they were unable to move without guards. The population generally was not safe
and there was no ‘80% safe area’. It was put to him that 80% of the population
lived in areas that were not under the control of Al Shabab. He stated that the
population lived outside Mogadishu and only came into the city in the morning
in order to avoid war. He stated there were no safe areas and there was war
everywhere. He stated that a minister had been killed by his own niece and the
port was under fire just the other day. It was put to him that there were large
areas outside Mogadishu that were not under the control of Al Shabab. He
replied that he was not aware of any such places; to his knowledge the whole of
Somalia
, with the exception of Somaliland and Puntland, was under Al Shabab
control. He was asked whether he had heard that there were parts of
Somalia
where there was no fighting. He replied that if the capital was not safe then
nowhere was safe. He stated that Somaliland and Puntland were clan-based and
had their own problems. He stated that Jowhar was an Al Shabab base. He was
asked whether he was aware that internal travel was possible in
Somalia
. He replied that he would be accused of being a spy if he returned. It was put to
him that there were transport links between Mogadishu and Jowhar. He stated
that he was aware of that. It was put to him that people did move between Al
Shabab and TFG controlled areas. He disagreed with that and said that once
somebody was in an Al Shabab area, they would be unable to move into a TFG
controlled area and vice versa. The only way to move between areas was to avoid
checkpoints otherwise one could be executed. He said he had heard people
talking about this.
5.
The
appellant was asked whether he knew of anyone who had returned to Somalia
after living for a long time in the UK or in Western Europe. He said he had, but did not
specifically know anyone who had done so.
6. It was put to him that he had claimed in his witness statement that children were forcibly recruited by Al Shabab. He agreed with this. It was put to him that he was not a child and had no children. He stated that he did have a 12-year-old child but he did not know his whereabouts. He was asked on what basis he claimed in his statement that Al Shabab forced people to listen to long sermons of jihad. He replied that Al Shabab aimed to brainwash people. It was put to him that this was just a presumption on his part. He replied he had heard people talking about it. He was asked whether he knew of anyone who had been punished for refusing to fight for Al Shabab. He replied that Al Shabab did not allow any news broadcasters to record facts about them but he had heard that people were missing. The question was repeated. He said he had not seen anything on the television but there were lists on the internet of people who had been executed.
7. The appellant stated that he was a Sunni Muslim. He was asked whether there was anything about him that was different from other Sunni Muslims. He stated that Al Shabab called themselves Sunnis but they were not. He stated that Al Shabab were after people like him and wanted to force them to do what they (Al Shabab ) wanted. The appellant was asked whether he was required by his religion to smoke and chew khat. He stated he was permitted to do so. The question was repeated. He replied that it was his hobby to smoke and chew. He was asked whether he would be prevented from going to the mosque and praying by Al Shabab. He said he had not heard that they would do that but they did force people to go and pray.
8. He was asked about his objections to taxation. He replied that taxes were taken and used to kill people and so in a way both he and the killers were at fault. He was asked whether it would be against his religion to pay taxes in the UK if he disagreed with the objectives of the government. He replied that he had not claimed that his religion did not allow him to pay tax and he explained that if he paid taxes in the UK he knew that the money would be used for housing or the infrastructure and not for killing.
9.
In re-examination
the appellant confirmed that he had left Somalia
in 2000 and had not been back
since then.
10.
In
response to questions from the Tribunal the appellant stated that he believed
the UK was a safe country and that it was up to the government here to use
taxation in whatever way it chose. He was asked where he had left his wife when
he left Somalia
. He stated that he had left her in Jowhar with her family. He
was asked what had happened to her family. He replied that she was an orphan
and he meant he had left her with his family. He was asked why he had given a
false name to the UK authorities when he made his third asylum application. He
stated that he was forced to do so; it had not been his intention and that
people who came here after him had obtained refugee status. He accepted that it
had been a mistake and he should not have done it but he had been given the
wrong advice.
11.
The
appellant was asked what he had done between leaving Somalia
in 2000 and
arriving here in 2005. He said he had been travelling through Ethiopia, Sudan and Libya. He had spent ten days at sea trying to get to Europe from Libya. The boat had sunk and he had been rescued by a cargo ship and brought to the UK.
12. The appellant was asked whether he understood what a Sufi Muslim was. He asked whether that was the name of a man. He was asked whether he understood Sufism. He said he understood it as ‘Khalifi’; they were peaceful religious people. He was not one of them; he was Tabliq. There were no questions arising and that completed this appellant's evidence.
Appellant MW
13. The appellant was examined in chief by Ms Short. She gave her evidence in Somali through the court interpreter. She confirmed her address in Bristol. She confirmed that she recalled the statement she had made to the solicitors and that she had told the truth for that purpose. She confirmed the signature at the end of the statement was hers and that she would tell the truth to the tribunal.
14. The appellant stated that she had travelled from Bristol for the hearing with her husband and their three children. She said she would have struggled without him. She was asked how she would have managed to carry their children if she had been on her own and she stated that two were in a pushchair and one was holding her hand. She was asked what would happen if she arrived in Mogadishu with the children. She stated that people in Mogadishu did not use pushchairs. She would be unable to carry her three children without one. She was asked where she bought her children's clothes from. She replied she bought them from Asda, Next and H&M. She was asked whether she had any Islamic clothes for the children and she replied in the negative.
15. The appellant was asked about her religion. She stated that she was a Muslim. She described herself as a normal Muslim and not like Al Shabab. That completed examination in chief.
16.
The
appellant was then cross-examined by Mr Staker. She stated that she knew nobody
in Somalia
and had no friends or family there and no contact with anybody else.
She knew some Somali people in the UK but had no family here. As far as she
knew her husband had no family either and did not know many people here. She
was asked what her knowledge of
Somalia
was and she replied that she heard on
the news that there were killings and chaos. It was put to her that the
Tribunal had not considered it credible that she did not know which clan she
belonged to. She repeated that she did not know.
17. The appellant confirmed that she had arrived with entry clearance as a spouse in 2006 and that she left her first husband in May 2007. She moved in with her current partner although they subsequently had an argument and she moved out. Although they later reconciled and had an Islamic marriage, they had not lived together since. She stated that in April 2008 he was registered as the father of her first child and that her two younger children were also his. She confirmed that at the time of her initial hearing she was in an ongoing relationship with her partner. She stated that she disagreed with the finding of the Tribunal that it was not a strong relationship. When she was asked why they were not living at the same address, she stated that it was the government's job to put them in the same house. She was asked whether she had applied for housing so that they could live together and she replied that they were going to do that; they received an application form yesterday. That was despite the fact that they had reconciled in 2008.
18.
The
appellant stated that she had been looked after by her aunt in Somalia
and they
maintained contact after the appellant came to the UK and whilst she was still
married to her first husband but when they had separated he retained the
contact details. She stated she had no other way to contact her. Her aunt's son
lived in Canada but there was no communication between them. The appellant was
asked about the time when she had left her current partner in 2008. She said
she had met a family on the street and had gone to live with them. It was put
to her that that did not sound credible. She maintained her reply.
19.
The
appellant was asked about her comment in paragraph 12 of her witness statement
and she was asked to clarify whether she meant most or all girls were
circumcised. She said girls were circumcised. The question was repeated and she
replied that all those that she knew had been circumcised. She was asked
whether she knew of anyone who was called names for being uncircumcised. She
replied "they would say bad things to you if you were not
circumcised". She was asked whether that meant that she knew people who
were not circumcised. She stated that everyone was. She explained in her
culture it was a shame not to be. She was asked whether she knew of any Somalis
opposed to the practice. She replied that it was forbidden in the UK but it was permitted in Somalia
. The question was repeated and she gave the same answer. It was
put to her that people could still oppose the practice even if it was the norm.
She stated that it would be shameful not to be circumcised. She was asked
whether she knew of anybody in the UK who opposed the practice or whether it
was just the law that stopped them from having their daughters circumcised. She
stated that in
Somalia
people were circumcised by unprofessionals. She was
asked what the attitude of the Somali community was here. She stated that
people followed the law. She was asked whether Somalis here would consider
circumcision if they were able to. She replied in the negative. She was asked
whether she knew of anyone who opposed the practice and she stated she did not.
She repeated that all females in
Somalia
were circumcised. The appellant was
asked who would place pressure on her to have her daughters circumcised if she
had no family or clan links in
Somalia
. She replied that it was their tradition
and if she did not do so "everyone" would say "bad words".
She was asked who she meant. She stated "everywhere you go people would
say it". She was asked how anybody would know. She stated that there were
no private toilets and showers, children played and urinated outside and it
would become known. She was asked whether there would be any other consequences
apart from the calling of names. She replied that it would be shameful. She was
asked who would be able to force her to have her child circumcised if she refused
to do it. She replied that it would be degrading for her child and she would be
depressed. She was asked what she would do if she had to choose between having
the procedure done and being called names. She replied she would have her
daughter circumcised.
20. The appellant was asked whether she was aware of the support available to Somalis who returned voluntarily. She said she was not. It was put to her that the VAR programme provided funds and assistance. She stated that she did not need to contact them.
21.
The
appellant was asked whether there was any reason why Al Shabab would be
displeased with her if she returned to Somalia
. She stated that they would be
able to differentiate between those who had remained in