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Strasbourg allows Somali test case

Strasbourg allows Somali test case

Somalia

The cases of Sufi and Elmi v UK (Applications nos. 8319/07 and 11449/07) have been allowed by the European Court of Human Rights. This is a major judgment on return to Somalia and the conditions there. The press release can be found here and the judgment here (Word version here, BAILII version here).

In summary, the Court holds that conditions in Mogadishu breach Article 3 for virtually everyone, although there might conceivably be some people with high level connections that would be safe (para 250). For most, and certainly for those who have been outside Somalia for a long time, return to Mogadishu is therefore unsafe.

The Court also finds that it might be possible for a returnee to relocate to another, safer part of Somalia from the airport (para 271). This depends on the area, and the Court was not able to make findings on every bit of Somalia. Evidence will therefore be required in individual cases. However, the Court then goes on to eliminate the possibility of relocating for many individuals by finding that any returnee who has been outside Somalia for a long time cannot relocate to (or through) areas controlled by the al Shabaab group (para 277). Al Shabaab control large areas of Somalia.

The Court holds that conditions in refugee and Internally Displaced Person (IDP) camps are in breach of Article 3 and it is therefore not possible to return a person who would have to relocate to such a camp. The approach of the Court in MSS v Belgium and Greece is preferred in this context to that in N v UK because the situation arises from the actions of parties to the conflict in Somalia, not from simple lack of resources (para 283).

Interesting other findings include that a fresh claim was an inadequate alternative remedy for the claimants in this case (para 207-08), that the failure to apply for reconsideration in one of the cases, on legal advice, did not mean that that claimant had failed to exhaust all domestic remedies (para 209), that the report of the fact finding mission to Kenya is worthless because it is impossible to evaluate the quality or reliability of the sources used (para 234), and that Article 3 of the ECHR broadly incorporates the type of harm envisaged by Article 15(c) of the EU’s Qualification Directive (para 226).

This latter finding is interesting and perhaps problematic for the future, given that in the Qualification Directive cases advocates have argued that Article 15(c) must add something to Article 3 ECHR otherwise it is redundant. Article 15(b) specifically incorporates the language of Article 3 ECHR, so what would be the purpose of the additional language of Article 15(c)? It seems unlikely to happen in practice but there is a possibility of a ‘virtuous circle’ (depending on one’s standpoint, of course) of constantly improving standards of protection, as Article 15(c) QD is argued to be more generous than Article 3 ECHR, then Article 3 ECHR catches up, then Article 15(c) QD becomes more generous again and so on.

Both claimants succeeded in this case on their individual facts.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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