M.S. v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
1. The applicant, M.S., is a Somali national who was born in 1980 and lives in Swinderby. 3. The applicant arrived in the United Kingdom at the age of fifteen with his father and siblings. His mother appears to have been in the United Kingdom already. He had left Somaliland at the age of eight and spent the intervening years in Ethiopia. His father claimed asylum with his family, including the applicant, as his dependants; however, this claim was refused. The family were granted exceptional leave to remain and, in time, indefinite leave to remain. 4. The applicant was convicted of arson and abusive or threatening behaviour on 14 March 2000 and sentenced to 33 months in a young offenders’ institution. Throughout 2005 and 2006, he was convicted of numerous counts of failure to surrender to custody and shoplifting, for which he was fined or sentenced to short periods of imprisonment or community service. On 13 September 2007, he was convicted of attempted robbery with an offensive weapon in a public place and sentenced to 2 ½ years’ imprisonment. He was notified of his liability to deportation as a result of this conviction on 6 December 2007. 5. The applicant raised a fear of return to Somaliland on 16 December 2007, but on 10 May 2008 he informed the authorities in writing that he did not wish to pursue an asylum claim. He applied to and was accepted onto the facilitated voluntary return scheme on 28 July 2009, but withdrew from the scheme on 3 August 2009 on the basis that he wished to pursue an asylum claim. The basis of his claim was that he would be at risk in Somalia due to his father’s previous political involvement. The applicant’s asylum claim was refused by the Secretary of State on 17 December 2009. 6. The applicant’s appeal against the refusal to revoke his deportation order was dismissed by the First-tier Tribunal (Immigration and Asylum Chamber) on 22 April 2010. The Tribunal upheld the Secretary of State’s certification that the applicant, as a danger to the community, was excluded from protection under the Refugee Convention, but went on to consider his claim under Articles 2 and 3. It was found to be wholly incredible that he should be at risk in Somaliland on the basis of his father’s former political activities: not only had his father allegedly been involved in politics in central Somalia and not Somaliland, but his father’s asylum claim upon entry to the United Kingdom had failed. If the applicant’s father was not considered to be at risk in 1995 then, there was no reason that his son should be at risk now. The Tribunal noted that there was a functioning administration in Somaliland, unlike the rest of Somalia, and that the general security situation was stable. The applicant had been born in Somaliland; his father was from the area; and his mother was a member of the Isaaq, which was the majority clan in Somaliland. The applicant also had relatives in neighbouring Djibouti and possibly in central Somalia. He had not established that his rights under Articles 2 and 3 would be breached by his return to Somaliland. In terms of Article 8 it was not considered that the applicant had family life in the United Kingdom and his private life was limited given the amount of time he had spent incarcerated. The substantial public interest in his deportation, given his long history of offending, rendered his deportation proportionate. 7. The applicant sought permission to appeal to the Upper Tribunal; however, this application was refused on 9 August 2010. The applicant sought facilitated voluntary return to Somaliland but again withdrew from the scheme on 7 October 2010. He was released on bail on 12 October 2010 but was rearrested on 11 February 2011 for racially or religiously aggravated assault. He was remanded on bail but rearrested on 22 June 2011 pending his deportation, which was set for 20 July 2011 to Somaliland. 8. The applicant sought an interim measure from this Court to prevent his removal and on 20 July 2011, the Acting President of the Chamber decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be removed until further notice. 9. On 29 November 2011, the Chamber considered information received from the Government regarding the safety of returns to Somaliland and all the facts of the applicant’s case, and decided to lift the interim measure previously indicated under Rule 39. 10. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. 11. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention. 12. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. 13. The central issue arising in this case, heard by the High Court on 14 October 2009, was a claim for damages for false imprisonment by a Somali national who had been held in immigration detention from 16 April 2004 to 21 August 2007. The Government had sought his deportation, as a foreign national criminal, to Somaliland, from where it was believed that the claimant originated. However, due to various factors, the applicant’s deportation could not be arranged and he was eventually released on immigration bail. In finding that, from June 2007, the applicant’s detention had been unlawful, the High Court referred inter alia to a Memorandum of Understanding between the Government of the United Kingdom and the Somaliland authorities concluded in 2003 and renewed in 2007, which dealt with the question of returns. 14. The Memorandum of Understanding provided that the Somaliland authorities would accept the return of persons who had no right to remain in the United Kingdom and had a right of return to Somaliland. Such return might be voluntary or enforced as regards the individual, but required the prior consent of the authorities. Such consent would be granted only after the provision of adequate bio-data to satisfy the Somaliland authorities that the individual in question had a sufficient connection to Somaliland, which would generally entail that the person came from a clan with a sizeable representation in the region, and/or had been born (or had parents who had been born) in the region, and/or had family currently residing there. Such bio-data was, in practice, difficult to obtain without a significant level of cooperation from the proposed returnee. Furthermore, on a separate but related note, there had been no practical possibility of enforced returns between August 2004 and July 2006 due to a refusal by all air carriers operating flights to Somaliland to carry passengers who had not consented to travel. 15. In the case of the claimant in question, his unwillingness and inability to provide sufficient bio-data to satisfy the Somaliland authorities’ stringent requirements meant that, by June 2007, it should have become evident that his deportation to Somaliland would not be achieved within a reasonable time. 16. The latest report published by the UNHCR, Eligibility Guidelines for assessing the international protection needs of asylum-seekers from Somalia, published on 5 May 2010, stated as follows: “The self-declared Republic of Somaliland, which has not been recognized by the international community as an independent sovereign state, has been relatively peaceful and secure with the exception of the problematic presidential elections process... UNHCR considers that a situation of generalized violence or events seriously disturbing public order does not exist to the extent that an individual present in either Puntland or Somaliland would be at risk of serious harm.” 17. The most recent Operational Guidance Note on Somalia, published on 15 December 2011, provided: “Somaliland and Puntland, are in general relatively safe. A long-standing dispute exists over the territories of Cayn, Sool and Sanag, with both Somaliland and Puntland claiming them and the Sool-Sanag-Cayn alliances fighting to remain part of the original state of Somalia. General insecurity resulting from armed violence continues to be the main protection concern in the North-West regions of Somaliland and there has also been an increase in violence and assassinations in Puntland, since the beginning of 2011, mostly in Galkayo, Bossaso and areas around Galgala. There are major protection concerns around [internally displaced person] settlements both in Puntland and Somaliland, which include overcrowding, severe levels of malnourishment, economic exploitation of children and a lack of physical security, rapes, gang rapes and other instances of sexual and gender-based violence. The authorities in Somaliland will only admit failed asylum seekers returning from European countries who originate from their territory or those who have close affiliations to the territory through clan membership. In the case of majority clan affiliates, this means those associated with the Isaaq in Somaliland. In Somaliland taxis and 4x4 vehicles can easily travel from Hargeisa, Burao, Lasanod and Garowe. The main transportation between Somaliland and South Central is by lorry. People travel by air between Mogadishu and Hargeisa. The Tribunal in AMM and others ... also found that 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.” 18. In a report titled Human Rights Challenges: Somaliland Facing Elections and published on 17 March 2009, Amnesty International found that: “While overall human rights and humanitarian conditions have continued to worsen in southern and central Somalia, as well as in Puntland, a stable Somaliland has devoted attention to democratization, institutional capacity-building, stability and development in its 18-year pursuit of international recognition of self-declared independence. While Amnesty International takes no position on Somaliland’s claim to independence, the international community should provide the de facto authorities of the Government of Somaliland with necessary support to promote the rights of its people, and to ensure its capacity to firmly establish broad human rights protections.” In their Annual Report on Somalia, published on 13 May 2011, Amnesty International observed: “Presidential elections were held on 26 June in the Republic of Somaliland. Ahmed Mohamed Mahamoud Silanyo, a former opposition politician, was declared the new President in July. According to independent observers, the elections were generally free, fair and peaceful. However, media freedom organizations reported some instances of restrictions on journalists in the lead-up to the elections. Tensions flared in the border areas of Sool and Sanaag claimed by Puntland. A new armed group clashed with Somaliland security forces from May onwards. Thousands of people were reportedly displaced by the clashes. Displaced people from southern and central Somalia continued to live in difficult conditions. Minority groups continued to suffer discrimination.” 19. A Human Rights Watch report, Hostages to Peace: Threats to Human Rights and Democracy in Somaliland, was published on 13 July 2009 and stated: “What Somaliland has accomplished over the years is both improbable and deeply impressive. While much of south/central Somalia remains mired in chaos and bloodshed, Somaliland has built a hard-won peace that it has now maintained for more than a decade. That peace has sheltered Somalilanders from the horrific abuses that have destroyed so many lives across Somalia. At the same time, Somaliland has done much to build the foundations of democratic governance grounded in respect for fundamental human rights. In 2003 and 2005 it held competitive and credible national elections, including parliamentary polls that put the territory’s House of Representatives firmly in the hands of the political opposition. There is a vibrant print media and an active and independent civil society. Somaliland has accomplished these things primarily on its own, in one of the world’s most volatile regions.” Human Rights Watch’s more recent World Report 2011 – Somalia, published on 24 January 2011, stated: “After almost two years of delay, Somaliland finally held its presidential election on June 26, 2010. International observers deemed the polls reasonably free and fair despite an isolated incident in the Sool region, where one person was killed. The incumbent President Dahir Riyale accepted defeat and peacefully ceded power to an opposition candidate, further advancing hopes for stability in the northern region. The situation remains unstable in the contested regions of Sool, Sanag, and Cayn, which lie between Somaliland, in Somalia’s northwest, and the autonomous state of Puntland in the northeast. Thousands of civilians were displaced by clan-based clashes and conflicts over resources in the disputed area in June.”