Summary: Somalia – safe for returns?

Legal Updates

The Free Movement blog has very useful updates and commentary on asylum and immigration law.  While not solely for the use of lawyers, some of the posts may be less accessible to people without a legal background.

You can find simplified summaries of key Free Movement posts on this resources blog. See below for one such summary on the Home Office’s attempts to say Somalia is safe for returns.

Read original Free Movement post here.  Sentences marked as quotations are taken directly from the Free Movement post.

Somalia – safe for returns?

The current country guidance on Somalia says that there is in general a real risk of serious harm to those in Mogadishu.

Country guidance cases are asylum appeals chosen by the immigration tribunal to give legal guidance for a particular country, or a particular group of people in a particular country. The decisions in these cases are assumed to be based on the best possible evidence about that country at that time. Until there are significant changes in that country, a country guidance decision sets out the law for other asylum-seekers from that country.

You can read the judgment in the case – called ‘AMM and others’ – that is the current country guidance on Somalia here.

The Home Office has for a while been trying to argue that this country guidance is no longer relevant as the situation in Somalia has improved so much.  An appeal will be heard in December 2013 at the Upper Tribunal which is intended to give further country guidance.

Somalia not safe?

Presenting Officers in asylum appeals have spent the last year or more arguing that Mogadishu is safe, contrary to [the country guidance case.]

and

Nevertheless, bail summaries – the documents the Secretary of State uses to justify immigration detention – have begun to state that “returns to Somalia will begin in October 2013”.

BUT

Objective evidence suggests the situation has not improved in Somalia as much as the Home Office claim.   Read more about the situation in Somalia on our Country of Origin blog.

The Islamist militants in fact remain in control of the majority of south and central Somalia and are carrying out their threats to cause mayhem in Kenya too.  Significant areas of the country remain under-reported because of security risks.  The Somali government is beset by corruption and infiltration.

Even where there have been security improvements, it is unclear how long these will last.

Article 15c grounds

Removals to Mogadishu can still be resisted successfully on article 15(c) grounds by most asylum seekers.

Article 15c grounds refers to Article 15c of the Qualification Directive, which is the interpretation of the Refugee Convention in European Law. The relationship between the Refugee Convention, the Qualification Direction, and the European Convention on Human Rights is complicated.

Article 15c refers to 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.’ This is different from the individualised, specific threat to you covered in the Refugee Convention. Article 15c covers situations where civilians are at serious risk simply by being present in a very dangerous situation of armed conflict where indiscriminate violence is widespread.

The country guidance – the AMM case – on Somalia states that the situation in Mogadishu means that Article 15c applies for most Somalis there.  An exception to this is the small number of people “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 15c risk, which exists for the great majority of the population, does not apply”.

Some people would be excluded from Article 15c protection even though they meet the Article 15c risk.  Read this Home Office policy document and the section on Exclusion from Refugee Status (on the same grounds that someone can be excluded from 15c protection) in our toolkit to find out more.

Those with mental health problems or disabilities, those who have not lived in Somalia for many years and would find themselves in Mogadishu bereft of support or who are otherwise particularly vulnerable, may also be able to establish that removal would breach article 3 and so succeed in an appeal even if excluded from article 15c protection.

The Home Office would have to show ‘very strong grounds supported by cogent evidence’ in order to try and remove Somali asylum seekers despite this country guidance being in place.  The Home Office have not yet demonstrated these grounds.

Mogadishu: a “complex and fluid battleground”

[Home Office asylum] refusal letters have been selectively citing Danish Immigration Service fact-finding reports on improvements in Mogadishu. There is also a new Operational Guidance Note, published in September 2013, which attempts to paint the rosiest picture possible. But read them in full and the Danish reports reveal that Mogadishu remains a city ravaged by car-bombings, coordinated attacks and indiscriminate violence. The authors also confess to not having left the capital, so grave were their security concerns.

Operational Guidance Notes (OGNs) are produced by the Home Office, and they provide a brief summary of the general, political and human rights situation in a country and describe common types of claim. They give guidance on whether the main types of claim are likely to justify the grant of asylum, humanitarian protection or discretionary leave.  This selective use of objective evidence in OGNs is very common, and the Still Human Still Here (SHSH) coalition produce commentaries highlighting where OGNs refer to out-of-date evidence or selective reading of reports and case law.  Read more about SHSH’s commentaries here.

The very reports that the Home Office refer to, to say that the situation in Mogadishu is much improved, describe asymmetric warfare, including use of improvised explosive devices (IEDs), suicide bombings, grenade attacks and regular assaults by small armed groups as well as armed conflict within government aligned forces and violations against civilians committed by them.

Outside Mogadishu

Outside Mogadishu, parts of the country are being patrolled by the armies of Kenya, Uganda, Burundi and Sierra Leone (fighting under Amisom, the UN Mission in Somalia) as well as the Ethiopian National Defence Force. Improvements in those areas are fragile in the extreme and certainly open to contestation. Nor are the roads running out of Mogadishu considered safe from Shabaab activity.

Asylum seekers whose home area is outside Mogadishu can still successfully argue that they face risk of persecutory harm (and are therefore in need of refugee status) in areas where Al-Shabaab remains operational.  Alternatively, they may also be able to argue they would face a real risk of serious harm (under Article 3 of the European Convention on Human Rights) or of a “serious and individual threat to life or person by reason of indiscriminate violence in situations of international or internal armed conflict” (under Article 15c of the Qualification Directive, see above).

Internal relocation

The Home Office or courts may try to argue that a Somali asylum seeker could be safe in another part of Somalia, even if they are not from that area. This is called ‘internal relocation‘.

Refugee status or humanitarian protection will be only be granted if it can proved that there is a risk of persecution of harm from indiscriminate violence AND the person applying for protection cannot relocate somewhere else in Somalia to be safe.

To show that internal relocation is not going to protect you, you would either need to prove that the risk you face would follow you to where you were relocated (e.g. you would be tracked down by the person trying to harm you), or that you may be safe from persecution but other risks would present themselves. This may be because you have no family or social networks there and could not safely begin a new life there. Economic and social factors should be considered here – would you be able to make a living if you didn’t know anyone and had no social, religious or ethnic connections? If you couldn’t make a living, what would happen to you? The test that is applied is whether asking you to relocate within your country would be ‘unduly harsh’.

Amnesty International’s recent briefing on forced evictions of Internally Displaced Persons (IDPs) in Mogadishu may be useful in trying to argue that internal relocation to Mogadishu would be unduly harsh.

Unreported cases

There have been a couple of cases in the Upper Tribunal, the judgments of which have not been made available to the public, in which the judges stated that they were not satisfied that the situation in Mogadishu had improved enough, or was durable enough, to mean the country guidance case AMM was no longer applicable.



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