Sufi and Elmi v The United Kingdom  ECHR 1045 (28 June 2011)
The European Court of Human Rights (the Court) has found that the return of two Somali nationals to Mogadishu, Somalia would amount to inhuman and degrading treatment in breach of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) because of the situation of general violence there.
Both of the Applicants were Somali nationals being held in detention in the United Kingdom pending deportation due to their criminal behaviour.
The first Applicant, Mr Sufi, was born in 1987, and had entered the United Kingdom using false travel documents in 2003. He claimed asylum on the ground that as a member of the minority clan Reer-Hamar, he had been subjected to persecution by Hawiye militia, who had killed his only relatives. His asylum application was refused in 2005 by the Secretary of State for the Home Department because, inter alia, the fact that the first Applicant had remained in Somalia until 2003 undermined his claim to be a member of a minority clan. From 2005, the first Applicant was found guilty of a number of offences, including burglary, attempted burglary and dishonestly obtaining goods by deception. In making the deportation order in 2006, the Secretary of State noted the seriousness of the first Applicant's offences and the need to protect the public from serious crime, the fact that the first Applicant was young, in good health and single, and that he had spent his youth and formative years in Somalia. It would therefore not be unreasonable to expect him to readjust to life in Somalia, and his deportation would not constitute a disproportionate interference with his right under article 8 of the Convention to respect for his family and private life.
The second Applicant, Mr Elmi was born in 1969, and had entered the United Kingdom in 1988 when his father was appointed to the Somali Embassy in London. When his father died, the second Applicant made an application for asylum, and was granted Indefinite Leave to Remain in the United Kingdom in 1994. Between 1996 and 2004, the second Applicant was convicted of a number of offences, including handling stolen goods, obtaining property by deception, theft, road traffic and drug offences. In making the deportation order in 2006, the Secretary of State considered that the second Applicant was a danger to the community, that he would not be at risk if her returned to Somalia as he was a member of a majority clan and that the family ties with his sisters and mother in the United Kingdom did not constitute family life for the purposes of article 8 of the Convention.
Both Applicants' initial appeals against the Secretary of State's decisions were rejected, and they made applications to this Court. They argued that if they returned to Somalia they would be at real risk of ill-treatment contrary to article 3 and/or a violation of the right to life under article 2 of the Convention. They also claimed that their removal with disproportionately interfere with their rights to private and family life under article 8 of the Convention.
After dismissing the United Kingdom's objection to the validity of the applications on the basis that domestic remedies had not been exhausted, the Court examined the merits of the Applicants' claims, focusing on whether the deportation orders breached article 3 of the Convention.
The Court observed that the prohibition of torture and of inhuman and degrading treatment or punishment is absolute, irrespective of the victims conduct and that therefore the nature of the offence committed by the applicants is irrelevant for the purposes of article 3.
In the context of an expulsion, the Court said
the sole question for the Court to consider… is whether, in all the circumstances of the case before it, substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3. If the existence of such a risk is established, the applicant's removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence, a personal characteristics of the applicant, or a combination of the two.
The Court went on to say however that "a general situation of violence would only be of sufficient intensity to create such a risk 'in the most extreme cases' where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return." Although there was no guidance in previous decisions of the Court as to how the intensity of a conflict is to be assessed, the Court accepted the following criteria of the Asylum and Immigration Tribunal as an appropriate yardstick by which to assess the level of violence in Mogadishu, namely:
- whether the parties to the conflict were either employing methods and tactics of warfare which increased the risk of civilian casualties or directly targeting civilians;
- whether the use of such methods or tactics was widespread among the parties to the conflict;
- whether the fighting was localised or widespread; and
- the number of civilians killed, injured and displaced as a result of the fighting.
In assessing whether a returnee would be subject to article 3 ill-treatment, the Court emphasised that humanitarian conditions in a country of return were also relevant, as was a consideration of whether the proposed deportees could relocate to a safer region in the country of return.
The Court concluded that the objective information before it overwhelmingly indicated that the level of violence in Mogadishu was of sufficient intensity to pose a real risk of treatment reaching the article 3 threshold to anyone in the capital, except for those who are well-connected to 'powerful actors'. Although it accepted that there were parts of southern and central Somalia where a returnee would not necessarily be at real risk, the Court considered that this would only be the case if the applicants had close family connections in those areas where they could effectively seek refuge.
In relation to the first Applicant, the Court found that his removal to Mogadishu would violate his rights under article 3 of the Convention. Even if the first Applicant were able to relocate to southern or central Somalia, with no family in these parts, he would most likely find himself in a refugee camp where conditions were 'sufficiently dire' to reach the article 3 threshold in and of themselves. The first Applicant would also be particularly vulnerable on account of his mental illness. In relation to the second Applicant, although he was a member of a majority clan, the Court did not consider this to be evidence of sufficiently powerful connections which could protect him in Mogadishu. Neither did the Court accept that he could relocate safely within southern and central Somalia.
Neither Applicant had made a claim in respect of pecuniary or non-pecuniary damage. The Court awarded both Applicants an amount for costs and expenses incurred before the Court.
Relevance to the Charter
This case is unlikely to be relevant to interpretation and application of the Victorian Charter. Because immigration matters are dealt with at a Commonwealth level, a Victorian court is unlikely to consider the application of the Charter in an immigration context.
At a national level, the principles affirmed by the decision could potentially be relevant in a number of ways, including to a review of a Minister's decision to deport a non-citizen for serious criminal offences or to cancel a person's visa. For example, in exercising his/her discretion whether to cancel a person's visa, the Commonwealth Minister is required to apply 'Direction no. 41 Visa Refusal and Cancellation under section 501 of the Migration Act'. One of the 'primary' considerations to be taken into account under Direction No. 41 are relevant international obligations, including the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees, the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The principles affirmed by this decision may have further relevance if the Migration Amendment (Complementary Protection) Bill 2011 is passed. This Bill would amend the Migration Act to extend protection to people who are not refugees but who face a real risk of torture or cruel, inhuman or degrading treatment or punishment if returned home, or would be exposed to the death penalty or other arbitrary deprivation of life.
The decision can be found at: http://www.bailii.org/eu/cases/ECHR/2011/1045.html
Rosannah Healy is a Lawyer and Pro Bono Coordinator at Allens Arthur Robinson