Massive Somalia Guidance

Once the arena for the expansionist designs of European powers – such as Britain and Italy – in the Horn of Africa, Somalia is arguably the foremost complex humanitarian emergency in the world: pretty much Hell on Earth. These days, however, the misery of Somalia’s people has more to do with Islamists, terrorism, Ethiopian interference, drought and famine. Equally, the suffering of Somalis is also intensified through crimes such as female genital mutilation (FGM). The internecine nature of the conflict within the Islamist groups, coupled with external interference and international neglect, has created an environment where human rights are abused in a catastrophic way. Furthermore, the UN has stated that the drought in the region means that almost half of Somalia’s population is malnourished. If things stand as they do and imminent ameliorative action is not taken 750,000 lives are expected to be lost.

The Upper Tribunal’s determination in AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) is a humungous document and the determination spans a daunting 665 paragraphs. Moreover, 146 paragraphs of summarised evidence and 1266 items of background evidence are appended to it.

The Tribunal made its findings in light of the ECtHR’s judgment in Sufi & Elmi v United Kingdom (Applications 8319/07 and 11449/07) where the Court ruled that the removal of people such as the two applicants (who had very appalling criminal records) to Somalia would put them at risk of ill-treatment in contravention of Article 3 of the ECHR because of generalised violence in Mogadishu. For Strasbourg the UK’s duty – to protect the two from torture or ill-treatment – remained absolute and the government was “very disappointed” by the judgment.

In Sufi & Elmi the Court followed its assessment of Article 3 risk in M.S.S v Belgium & Greece (Application no. 30696/09) and gave regard to an applicant‘s ability to cater for his most basic needs, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame. In doing so the Court, thus, departed from N v UK (Application no. 26565/05) – that humanitarian conditions only breach Article 3 in very exceptional and compelling cases – and concluded that humanitarian conditions in Somalia were not attributable to poverty or the State‘s inability to deal with calamities such as drought or famine alone because the crisis is predominantly due to the direct and indirect action of the parties to the conflict.

The five appellants in the new country guidance case were: (i) AMM – who was granted refugee status because of Article 3 ECHR risk from the dreaded Al-Shabab militia; (ii) MW – who entered the UK on a spouse visa (subsequently divorcing her husband and claiming asylum) was granted discretionary leave and was ultimately determined to be a refugee by the Tribunal; (iii) ZF – “a striking instance of a person whose claim to international protection turns entirely on the respondent’s decision to return the appellant to Mogadishu, as opposed to Somaliland” (at [639]) – who was granted refugee status; (iv) FM – who was granted humanitarian protection and not recognised as a refugee; and (v) AF – who like FM in (iv) was not considered to be a refugee and was, thus, granted humanitarian protection instead.

The UNHCR intervened in the case argued that the “Qualification Directive itself is poorly drafted…and should not be given an overly legalistic interpretation”.

The Tribunal’s country guidance can be summarised as:

Mogadishu

  • There is a risk of serious harm from indiscriminate violence (Article 15 (c)) to people who are not connected or affluent despite the withdrawal of Al-Shabab.
  • Regardless of circumstances, the situation does pose a real risk of severe Article 3-level harm in respect of any person there; despite the IDP camps and the famine, a returnee from the UK with family and connections can avoid living in the said camps but a returnee may, nevertheless, face a real risk of Article 3 harm, by reason of his or her individual vulnerability.
  • FGM cases aside, it is unlikely that proposed repatriations at the present time will raise Refugee Convention issues.

Southern and central Somalia

  • The sporadic and localised fighting does not place every civilian at a risk of serious harm from indiscriminate violence. Individual cases will require investigation about where a person comes from and the present situation in that location. Where fighting continues it will have to be considered in deciding whether Article 15(c) is applicable. Equally, no generalised current risk of Article 3 harm exists as a result of armed conflict.
  • Returnees who fled prior to 2008 (without “recent experience” of living in Somalia) are likely to be mistreated contrary to Article 3. Even returnees with recent experience who could assimilate better would have adverse assumptions made against them. The “rotating nature” of Al-Shabab leadership and the oppressive nature of their punishments meant that the risk of harm could not be precluded even where returnees’ families lived in Al-Shabab controlled areas.
  • Al-Shabab’s restrictions – on lifestyle, dress, etc – to fight kufr (apostasy) are such that those found to be in breach of “the law” are at a real risk of Article 3 harm will be in general refugees because the persecutory harm’s infliction is on the basis of imputed religious opinion.
  • Although suspicion of apostasy or kufr could be avoid by conforming to the restrictions, consequences for non-conformists were extreme enough to conclude, under RT (Zimbabwe) [2010] EWCA Civ 1285, that they will also in general be at real risk of persecution by Al-Shabab for a Refugee Convention reason.
  • The same considerations apply to those who are reasonably likely to have to pass through Al-Shabab areas.
  • Given the extreme and indiscriminate violence in Mogadishu someone at a real risk of persecution in a home area in southern and central Somalia is generally unlikely to relocate internally and relocation to an IDP camp in the Afgoye Corridor will, as a general matter, likewise be unreasonable in the absence of a person’s ability to have a lifestyle similar to the better-off inhabitants of the Afgoye Corridor settlements.
  • Internal relocation to an area controlled by Al-Shabab is not feasible for a person who has had no history of living under Al-Shabab in that area. Equally, internal relocation to an area not controlled by Al-Shabab is an unlikely option generally, if the place of proposed relocation is stricken by famine or near famine conditions.
  • Family and/or clan connections may play an important part in determining the reasonableness of a proposed place of relocation: if the nature of the present humanitarian crisis diminishes and if Al-Shabab continues to lose territory such connections will grow in importance.
  • Women travelling without male friends or relatives are generally likely to face a real risk of sexual violence. The issue of travelling by land across southern and central Somalia – to a home area or proposed place of relocation – 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.
  • The availability of air travel within Somalia (including to Somaliland) is an issue that may have implications for future Somali appeals. Nothing in the evidence indicates that there is real risk to commercial aircraft flying to other airports in Somalia and flying into Mogadishu International Airport is sufficiently safe.

Somaliland and Puntland

  • There is no evidential basis for departing from the conclusion in NM and Others CG [2005] UKIAT 00076 that Somaliland and Puntland generally only accept back persons who were former residents of those regions and were members of locally based clans or sub-clans. Somali immigration to the United Kingdom has a close connection with Somaliland.
  • People from Somaliland will generally not be able to travel overland from Mogadishu International Airport to a place where they might be able to obtain an unofficial travel document for the purposes of gaining entry to Somaliland, and then by land to Somaliland – particularly the case where 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

  • The incidence of FGM in Somalia is universally agreed to be over 90%. The predominant type of FGM is “pharaonic”, categorised by the World Health Organisation as Type III. The societal requirement for any girl or woman to undergo FGM is strong. In general, an uncircumcised, unmarried Somali woman, up to the age of 39, will be at real risk of suffering FGM.
  • The risk will be greatest in cases where both parents are in favour of FGM. Where both are opposed, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand the strong societal pressures. Unless the parents are from a socio-economic background that is likely to distance them from mainstream social attitudes, or there is some other particular feature of their case, parental opposition itself 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.

Legal Guidance

The mammoth determination also contains 15 paragraphs of guidance on the law. These are summarised hereunder.

Firstly under section 2 of the HRA 1998, although a domestic tribunal is required to give effect to Strasbourg’s jurisprudence it is not bound to reach the same factual finding as Strasbourg because the conclusions regarding the relative weight to be placed on items of evidence adduced before a UK tribunal are ultimately matters for that tribunal.

Moreover, the judgment in Sufi & Elmi is jurisprudentially unproblematic because the high threshold (identified in N v UK) for finding an Article 3 violation in the case of naturally occurring phenomena did not need to be met. This is not to say, however, that the high threshold is not achievable in exceptional cases which must be assessed including the actions of the parties to a conflict, albeit that those actions are not the predominant cause of the humanitarian crisis.

Where Article 3 ECHR and Article 15(c) of the Qualification Directive are concerned authority variously has it that Article 15 (c) includes types of harm that are less severe than those encompassed by Article 3. Belief, under Article 10 of the Qualification Directive, means a coherent and genuinely held system of values and restrictions on watching TV: playing football did not constitute an interference with people’s religious beliefs who were not required to participate in such activities outside of their religion.

The religion element of Article 1(A) of the Refugee Convention cannot be satisfied solely by reference to the persecutor but can be satisfied if the persecutor imputes a perceived religious opinion to the victim. In determining a person’s entitlement to international protection no general legal principle exists to exclude possible acts – carried out in the proposed country of return – which would constitute a criminal offence in the UK. Genuine conscientious objections to complying with unjust laws or demands may, however, provide an entitlement to such protection.

Assuming that Al-Shabab’s behaviour towards those who break its rules is as found by the Tribunal, the position is as “extreme” as the factual basis in RT (Zimbabwe) and thus people from Al-Shabab areas who can show they are not genuine adherents of Al-Shabab’s ethos will have good claims to Refugee Convention protection, once outside Somalia (subject to internal relocation and exclusion clause issues), regardless of whether they could and would “play the game”, by adhering to Al-Shabab’s rules. It is up to the appellant to prove entitlement to international protection but this will turn on the circumstances of specific cases. In refusal letters and appellate proceedings the SSHD ought to raise internal relocation and it will be up to the appellant to assert why such relocation would be unreasonable.

Moreover, appeals arising from asylum and humanitarian protection grounds (following a grant of leave) can be decided hypothetically, where demonstrated by the facts, on the basis that 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. People who willingly inflict harm on others and use that as a basis to claim protection under the Refugee Convention, the Qualification Directive or Article 3 of the ECHR have no entitlement for such claims under the law.

Contrary to the decision in HH & Ors [2010] EWCA Civ 426 where it was held that Article 8 of the Qualification Directive was “to do principally with internal relocation”, such confinement of the said Article would be illogical.

Finally, where MA (Somalia) [2010] UKSC 49’s set of steps yield a “mechanistic” rather than a holistic approach in assessing appellants’ lies such steps are unnecessary and the “negative pull” or the significance of the lie depends 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 lies were initially told to bolster issues which seemed important at the time but no are longer important, the Tribunal is entitled to approach with caution – in light of past lies – any evidence which remains central to the case.

Apologies for not having posted on this sooner but the determination was just too massive! (Top photo: Robin Hammond/Panos)

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Al-Shabab, Asylum, ECHR, Female Genital Mutilation, Human Rights, Mogadishu, Persecution, Somalia, Women and tagged , , , , , , , , . Bookmark the permalink.

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