CASE OF A.A. AND OTHERS v. SWEDEN
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Somalia)
André Potocki;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
6. The applicants were born in 1964, 1990, 1994 and 1997 respectively and live in Gothenburg. 7. They entered Sweden on 1 June 2009, when they were respectively forty-five, nineteen, fifteen and twelve years old, and applied for asylum and residence permits the following day. 8. The first and second applicants were heard by the Migration Board (Migrationsverket) on 5 and 16 June and 26 August 2009. A language test was carried out by an analyst, who had been born and raised in Mogadishu and came to Sweden in 2003. After the initial interview, legal counsel was appointed to represent the applicants. 9. The first applicant submitted, among other things, that they were members of the Sheikal clan and that the family had lived together in a village called Hosingo in southern Somalia since 1999. The first applicant had a university degree from Saudi Arabia. On 16 June 2009, he explained to the Board that he had not visited Saudi Arabia since 1999. On 26 August 2009 he was confronted with the fact that his passport had been stamped on two occations, in 2000 and 2005 in Djibouti, situated northwest of Somalia, whereupon he explained that he had travelled via Djibouti to Saudi Arabia and that those trips must have been after 1999. Once he had visited his brother’s daughter in Saudi Arabia. He did not recall the other visit. There were also stamps in his passport up to 2005 from Lowyacado, Borama and Berbera, in Somaliland, but the first applicant maintained that he and his family had remained in Hosingo throughout that period. 10. Al Shabaab took over Hosingo when the Ethiopian army withdrew in the middle of 2008. On 5 June 2009, the first applicant explained to the Board that he had participated in a demonstration to protest against Al Shabaab taking over their village, and that therefore he was on their list of persons to kill. On 16 June 2009 he explained that the elders of the village decided that they would try to negotiate with Al Shabaab. The negotiation ended in disagreement and the spiritual leader of the village was killed immediately after the meeting by two masked men. The first applicant was listed as a person to be killed and shortly thereafter two armed and masked men came to his house and asked for him. On 26 August 2009 he explained that the leader of the village had been killed six days after the meeting with Al Shabaab. The applicants would not be able to move elsewhere in Somalia since their clan was not domiciled anywhere else in the country and Al Shabaab was present everywhere. 11. The second applicant stated initially that her mother and husband remained in Hosingo. Later she explained that her husband had left the village. She did not know where he was. She still had six siblings left in Hosingo, plus some uncles and cousins. In 2006 the family had problems with Al Shabaab, which burned down their house. The second applicant had burn scars on her upper body from that incident. In 2008 one of the village leaders was killed and her father and husband had to flee. She was afraid of being raped by Al Shabaab upon return. 12. On 11 September 2009 the Migration Board rejected the applicants’ request for asylum. It noted at the outset that it was difficult for Somali citizens to prove their identity since there was no authority that could issue passports or other acceptable identity documents. Accordingly, the applicants’ stories were decisive for determining their origin. The Board found that the first applicant had provided detailed information about Hosingo village, situated in southern Somalia. However, his pronunciation of some words was typical of that in northern Somalia. In addition he had stamps in his passport, dated 2000 to 2005, from airports in Somaliland. There were no entry or departure stamps from trips to or from southern Somalia. Finally, he had provided contradictory statements about the crucial event in 2008, notably whether the leader was killed immediately or six days after the negotiation with Al Shabaab, and why he was being sought by them, and he had been vague about the situation in south and central Somalia. The language analysis of the second applicant indicated that she originated from Somaliland. Moreover, she had not been able to give any detailed information about the village or her clan, which could be verified. In conclusion, the Migration Board did not find it credible that the applicants had been living in Hosingo until their departure from Somalia. It found it much more likely that the applicants’ most recent home had been in northern Somalia. 13. The applicants appealed against the decision to the Migration Court (Migrationsdomstolen), before which an oral hearing was held on 12 May 2010. The Migration Court refused to hear two witnesses on the applicants’ behalf, who allegedly could have certified that they were from Hosingo. However, their written testimony was allowed. 14. By a judgment of 2 June 2010 the Migration Court upheld the Migration Board’s decision. The Migration Court did not question that the first applicant originated from Hosingo in southern Somalia. Like the Migration Board, however, it found that the language analysis of the first and the second applicants, and their various explanations, did not support their contention that they had had their latest domicile in southern Somalia or that they should be considered refugees or otherwise in need of protection. 15. On 3 September 2010 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. Hence the deportation order became enforceable. 16. In autumn 2010 the applicants claimed that there were impediments to the enforcement of their deportation orders. On 19 October 2010 the Migration Board decided not to reconsider the case, finding that the applicants had failed to present new circumstances which could justify reconsideration of the case. 17. At the beginning of 2011, the applicants again requested a reexamination of their cases, which was refused by the Migration Board on 31 March 2011. The applicants appealed against this decision to the Migration Court, which rejected the appeal on 6 May 2011. 18. On 16 January 2012 the third applicant claimed that there were impediments to the enforcement of his deportation order. On 9 February 2012 the Migration Board decided not to reconsider the case, finding that no new circumstances justifying reconsideration had been presented. 19. Likewise, in March 2012 the first and the fourth applicants claimed that there were impediments to the enforcement of the deportation orders against them, claims which were rejected by the Migration Board on 29 March 2012.