Inhuman or degrading treatment - Expulsion - Whether convention rights would be violated

Sufi and another v United Kingdom: European Court of Human Rights, Judge Garlicki (president), Judges Bratza, Mijovic, Jebens, Hirvela, Bianku and De Gaetano, and F Araci (Section Registrar): 28 June 2011

The applicants were Somali nationals.

In 2003, the first applicant entered the UK clandestinely, and claimed asylum on the ground that, as a member of the Reer-Hamar, a sub-clan of the minority Ahansi clan, he had been subjected to persecution by Hawiye militia, who had killed his father and sister and seriously injured him.

As a consequence, he had no surviving relatives in Somalia.

His asylum claim was dismissed in April 2005.

In October, the first applicant pleaded guilty to two offences of burglary, five offences of dishonestly obtaining goods by deception, and one offence of attempting to dishonestly obtain goods by deception. He was sentenced to 18 months’ imprisonment.

In 2006, he was convicted, among other things, of threats to kill and was sentenced to a further six months’ detention at a Young Offender Institution.

He was later sentenced to three months’ imprisonment following a conviction for indecent exposure and to 32 months’ imprisonment following a conviction for five counts of burglary and theft and two counts of attempted burglary.

The second applicant’s father, a high-ranking officer in the army during the Barre regime, was appointed to the Somali Embassy in London as a military attaché in 1988.

The second applicant joined him in the UK in October 1988 and was given six months’ leave to enter. In October 1989, he was recognised as a refugee and granted leave to remain until 31 October 1993. In 1992, the second applicant was convicted of a road traffic offence.

In 1994, he was granted indefinite leave to remain in the UK. In 1996, he was sentenced to a total of five years and six months’ imprisonment for handling stolen goods, obtaining property by deception, robbery and possessing an imitation firearm while committing an offence. In 2000, he was convicted of perverting the course of justice and sentenced to three months’ imprisonment.

He was also convicted on further counts of theft and road traffic offences in the same year. In 2001, he was convicted of theft on two occasions. In 2002, he was convicted on eight counts of supplying class A drugs (cocaine and heroin) and he was sentenced to 42 months’ imprisonment.

On an unspecified date, the second applicant was released on licence. In June 2004, he was sentenced to 12 months’ imprisonment for burglary and theft.

Deportation orders were signed against both applicants and they were both served with removal directions. The applicants requested, and were granted, interim measures under rule 39 of the Rules of Court to prevent their removal to Somalia prior to the court’s consideration of complaints made by them.

The applicants complained to the European Court of Human Rights that their removal to Mogadishu would expose them to a real risk of being subjected to treatment in breach of article 3 of the European Convention on Human Rights.

The court ruled: it was settled case law that contracting states had the right as a matter of international law and subject to their treaty obligations, including the convention, to control the entry, residence and expulsion of aliens.

The right to political asylum was also not contained in either the convention or its protocols.

However, expulsion by a contracting state might give rise to an issue under article 3, and hence engage the responsibility of that state under the convention, where substantial grounds had been shown for believing that the person concerned, if deported, faced a real risk of being subjected to treatment contrary to article 3.

In such a case, article 3 implied an obligation not to deport the person in question to that country.

As the prohibition of torture and of inhuman or degrading treatment or punishment was absolute, irrespective of the victims’ conduct, the nature of the offence allegedly committed by the applicants was irrelevant for the purposes of article 3.

The assessment whether there were substantial grounds for believing that the applicant faced such a real risk inevitably required that the court assess the conditions in the receiving country against the standards of article 3 of the convention.

Those standards implied that the ill-treatment the applicant alleged he would face if returned ought to attain a minimum level of severity if it was to fall within the scope of article 3.

The assessment of that was relative, depending on all the circumstances of the case.

Owing to the absolute character of the right guaranteed, article 3 of the convention might also apply where the danger emanated from persons or groups of persons who were not public officials.

However, it had to be shown that the risk was real and that the authorities of the receiving state were not able to obviate the risk by providing appropriate protection.

The assessment of the existence of a real risk should necessarily be a rigorous one.

It was in principle for the applicant to adduce evidence capable of proving that there were substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to article 3.

Where such evidence was adduced, it was for the government to dispel any doubts about it.

If the applicant had not been extradited or deported when the court examined the case, the relevant time would be that of the proceedings before the court.

A full and ex nunc assessment was called for as the situation in a country of destination might change in the course of time.

Even though the historical position was of interest insofar as it might shed light on the situation and its likely evolution, it was the present conditions which were decisive, and it was therefore necessary to take into account information that had come to light after the final decision taken by the domestic authorities.

Those principles, and in particular the need to examine all the facts of the case, required that the assessment should focus on the foreseeable consequences of the removal of the applicant to the country of destination.

That, in turn, ought to be considered in the light of the general situation there as well as the applicant’s personal circumstances.

In that connection, and where it was relevant to do so, the court would have regard to whether there was a general situation of violence existing in the country of destination.

To insist that the applicant show the existence of special distinguishing features would render the protection offered by article 3 illusory. Moreover, such a finding would call into question the absolute nature of article 3, which prohibited in absolute terms torture and inhuman or degrading treatment or punishment.

Therefore, the sole question for the court to consider in an expulsion case was 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 of the convention.

If the existence of such a risk was established, the applicant’s removal would necessarily breach article 3, regardless of whether the risk emanated from a general situation of violence, a personal characteristic of the applicant, or a combination of the two.

However, it was clear that not every situation of general violence would give rise to such a risk.

On the contrary, 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.

Accordingly, in the present case the court had to examine whether substantial grounds had been shown for believing that the applicants, if deported, would face a real risk of being ­subjected to treatment, contrary to ­article 3.

In doing so, it would first consider the general situation both in Mogadishu, which would be the point of their return, and in the remainder of southern and central Somalia before focusing on the foreseeable consequences of removal for each of the applicants.

The situation of general violence in Mogadishu had been sufficiently intense to enable the court to conclude that any returnee would be at real risk of article 3 ill-treatment solely on account of his presence there, unless it could be demonstrated that he was sufficiently well connected to powerful actors in the city to enable him to obtain protection.

Nevertheless, article 3 did not preclude the contracting states from placing reliance on the internal flight alternative, provided that the returnee could travel to, gain admittance to and settle in the area in question without being exposed to a real risk of article 3 ill-treatment.

In that regard, there might be parts of southern and central Somalia where a returnee would not necessarily be at real risk of article 3.

However, in the context of Somalia, the court considers that that could only apply if the applicant had close family connections in the area concerned, where he could effectively seek refuge.

If he had no such connections, or if those connections were in an area which he could not safely reach, there was a likelihood that he would have to have recourse to either an internally displaced person or refugee camp.

If the returnee’s family connections were in a region which was under the control of al-Shabaab, or if it could not be accessed except through an al-Shabaab controlled area, he could not relocate to that region without being exposed to a risk of ill-treatment, unless it could be demonstrated that he had recent experience of living in Somalia and could therefore avoid coming to the attention of al-Shabaab.

Where it was reasonably likely that a returnee would find himself in an IDP camp, or in a refugee camp, there would be a real risk that he would be exposed to treatment in breach of article 3 on account of the humanitarian conditions there (see [212]-[219], [293]-296] of the judgment).

In the circumstances of the present case, if the first applicant were to remain in Mogadishu, there would be a real risk that he would be subjected to article 3 ill-treatment.

As the first applicant originated from Qoryoley, he might have close family who could support him there.

However, the town was under the control of al-Shabaab and, as the first applicant arrived in the UK in 2003, there was a real risk he would be subjected to article 3 ill-treatment by al-Shabaab if he were to attempt to relocate there.

The removal of the first applicant to Mogadishu would therefore violate the first applicant’s rights under article 3 of the convention.

As to the second applicant, he would be at real risk of ill-treatment if he were to remain in the city of Mogadishu.

He had spent 22 years in the UK and, like the first applicant, he had no experience of living under al-Shabaab’s repressive regime. The second applicant, in all the circumstances, would not be able to travel to Mogadishu.

The removal of the second applicant to Mogadishu would therefore also violate article 3 of the convention (see [301]-[304], [309]-[312] of the judgment).

Accordingly, there would be a violation of the applicants’ rights if they were removed to Somalia.