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Press Release: Sufi & Elmi V. The United Kingdom

28 June 2011

Judgment delivered by the European Court of Human Rights

The European Court of Human Rights today ruled that removals to Mogadishu, Somalia would breach the European Convention on Human Rights.

In the joint case of Sufi and Elmi v. the United Kingdom, the Court ruled that those removed to Somalia would be at risk of ill treatment- prohibited by Article 3 of the European Convention on Human Rights (ECHR)- simply by virtue of the current situation of generalised violence in Mogadishu.

Represented by The AIRE Centre and Barrister Catherine Meredith (Mitre House Chambers) the applicants, Mr, Abdisamad Adow Sufi and Mr. Abdiaziz Ibrahim Elmi, are both Somali nationals who were born in 1987 and 1969, respectively. Mr Sufi, a member of a minority clan, the Reer Hamar, was only a child when he was persecuted and stabbed in the stomach with a bayonet by the Hawiye milita, who also killed his father and sister. Mr Elmi, arrived in the United Kingdom at the age of 19 with his family and was a member of a majority clan, the Isaaq. He argued that due to the length of time he had spent in the UK he would face persecution for being “Westernised” and anti-Islamic which would lead to him being at risk of limb amputation, public flogging or killing.

The applicants unsuccessfully challenged their deportation to Somalia before the domestic courts and so applied to the European Court of Human Rights who stopped their removal by indicating measures under Rule 39 of the Rules of the Court. The Court also prioritised the case under the expedited procedure.

Somalia is comprised of three autonomous areas: the self-declared Republic of Somaliland in the north west, the state of Puntland in the north east, and the remaining southern and central regions. Somali society has traditionally been characterised by membership of clan families, which are subdivided into clans and sub-clans. The four majority clans are Darod, Hawiye, Isaaq and Dir.

In 1991 opposing clans overthrew President Siad Barre and since that time Somalia has been without a functioning central government. The clans in question could not agree on a replacement leader and lawlessness, civil conflict, and warfare followed. Today the Transitional Federal Government is recognised by the United Nations and most foreign powers as a legitimate government and, despite being dependent on African Union troops for its survival, controls only a very small section of Mogadishu. Instead, the insurgent group Al-Shabaab holds the most power and, by the end of 2009, controlled more territory than any other faction in the country. It has a declared alliance with al-Qaeda and in December 2010 merged with another armed group, Hizbul Islam. There are other parties to the conflict and the fight for control has resulted in a severe deterioration of the security situation since 2010.

Whilst the history of a country is important, it is the present conditions which are decisive (§215). Furthermore, Article 3- the prohibition on torture- provides absolute protection to an individual. Therefore any bad behaviour or dangerousness on the part of the potential returnee cannot be taken into account when assessing risk on return (§212).

Specifically, the Court stated that the large quantity of human rights reports and news articles submitted “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” (§248). It further found that it would not be enough for the Government to argue that returnees to Somalia would be safe if they were from a majority clan – instead a returnee would need to have been in Somalia recently and be “exceptionally well-connected to powerful actors” (§§249-250).

The UK Government attempted to persuade the Court otherwise by submitting a UK Border Agency fact-finding report on Somalia. This report was conducted in Nairobi, Kenya due to the fact that the Foreign and Commonwealth Office were advising against all travel to Mogadishu on the grounds that it would be unsafe. Whereas, the Government were claiming that Mogadishu was safe enough to return the applicants to. The sources in the report were anonymised, “vague”, with no indication of the authority, reputation or the extent of their presence in Somalia. In addition, this report directly contradicted information contained in numerous other reputable human rights reports. As such, the Court was unable to attach substantial weight to the UK Border Agency report (§§ 233-234).

The Court also stated that there should be guarantees against being forced to move internally in Somalia where the applicants may be similarly subject to ill-treatment (§266). The Government described dire humanitarian conditions in central and southern Somalia as a “worst case scenario” and an exception. The Court found otherwise and stated that unless an individual can safely travel to an area with close family connections he would have to seek refuge in an IDP settlement or refugee camps (e.g. Afgooye Corridor in Somalia and Dadaab camps in Kenya), where the conditions also gave rise to treatment reaching the threshold of Article 3. The Court saw little prospect of the situation improving while the conflict continues (§267, §§291-292).

Further, if returnees were able to make it to an area where the general violence was of a lesser intensity but was controlled by Al-Shabaab, or they had to travel through an Al-Shabaab controlled area, they would be at risk of human rights violations. These violations included forcible recruitment at checkpoints (including of children) and “brutal” punishments such as flogging, stoning and limb amputation for minor indiscretions- for instance, playing scrabble or being a woman sitting next to a man on a bus. Indeed, women would be particularly targeted. The Court agreed that returnees would not, as the Government suggested, be safe if they “played the game”. The risk would be even higher for Somalis who have been out of the country long enough to become “Westernised” as certain attributes, such as a foreign accent, would be impossible to disguise (§§ 273-276). Therefore, forced internal relocation to, or through, Al-Shabaab controlled areas would similarly give rise to a violation of Article 3 (§277).

Both of the applicants were found to be at risk of Article 3 treatment on return and there was no internal relocation alternative. In respect of the second applicant – Mr. Elmi- despite the fact he was originally from Somaliland, the Government had set directions to remove him to Mogadishu. The Court found that in this instance the Government had contradicted themselves regarding admission to that territory.

We would specifically like to thank Ms. Meredith for her excellent work and commitment to this case and also thank The AIRE Centre team and everyone else who contributed.

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