UTIAC 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 and 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 and 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.
UTIAC
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.
UTIAC
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 and Elmi, the effect of RT is, accordingly, to take the Refugee Convention beyond the comparable ambit of Article 3 ECHR protection.
UTIAC
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.
UTIAC
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 and 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.
UTIAC
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.
UTIAC
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.
UTIAC
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.
UTIAC
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.
Judges:
Latter, Lane, Kekic UTJJ
Citations:
[2011] UKUT 445 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 29 September 2022; Ref: scu.449421