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Strasbourg allows Somali test case


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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.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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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.


13 Responses

  1. Disgusting ruling. Class-A drug dealers and burglars having their human rights upheld??? They morally lost it as soon as they started committing these crimes, at least in the UK.

    If these people come to the UK and repeatedly break the law, they should be kicked out, not rewarded and compensated. The UK government needs to grow some balls, just kick them out anyway, tighten our borders and get the hell away from the E.U. We need to stop being the dumping ground of Europe for criminals.

  2. Let Somalia deal with their own criminals, their large UK serious criminal records suggests that they are probably wanted there for a very good reason. They are illegal immigrants over here but nowadays that means nothing. We shouldn’t have to fund their easy-life whilst the honest british taxpayers go with less, that compensation award is a slap in the face. We should not hand a penny over for the crimes “they” commited,

    Better still, pack them on the first cargo plane out of the UK and drop them off by parachute in Strasbourg, France. Let’s see how their human-rights quickly change trying to claim permanent residence there.

  3. The comments here and elsewhere (e.g. Mail) are… worrying. They also confirm that people still don’t seem to be aware of the difference between the ECtHR and the EU.

    Back in the real world, this is very welcome news indeed (but what is the difference between what this says and what AM&AM (I think that’s the one?) says?).

    1. The comments are worrying, but Sonnesun’s position is clear – ‘human rights’ are not universally ‘human’, they only exist for some people. For myself, I fail to see why criminals should be punished beyond the punishment imposed by the criminal justice system.

    2. I don’t really see a difference between this case and AM&AM either.

      I’m guessing it’s para 250 and the notion that virtually everyone in Mogadishu is at risk whereas AM&AM suggested that there were perhaps a substantial minority of people that had majority clan connections and would therefore be afforded protection. To that extent I think this case goes just a touch further.

  4. Well in the UK nothing is ever made clear of the differences, lots of confusion over here. Personally I assumed that the court of human rights was all part of the EU. It still doesn’t excuse this mad ruling though.

    May I ask you where you’re from, and where you live?, are you an immigrant yourself?
    Would you want foreign repeat-offenders living where you are?

    The fact is, many do come over to the UK and commit crimes, These two were punished for burglary & supplying Class-A drugs, heroin brings the death penalty in other countries, probably in Somalia too. They didn’t learn by it the first time and they’ve successfully played the system and took us for mugs to get what they want, again.

    in London last year I was suddenly offered help with all my luggage by 2 eastern europeans who suddenly rushed towards me at the train station. We kept hold of them tight knowing what their true intentions were. Robbery by immigrants is a common problem in London and many are aware that these tactics goes on. This forfeits any immigrants human-rights of living here, which they arrogantly claim of us breaching, usually by those who sneak in unlawfully. We have enough of our own crims to deal with,

    These 2 crooks repeatedly breached our human-rights as soon as they arrived illegally, so why should we care for theirs? We are also not a bottomless moneypit. In fact we are too soft on foreign benefit claimants as it is, the softest in Europe. This wouldn’t be allowed to happen in other EU countries. About time we had a government who actually grew a backbone.

    I’m not alone with these views, the majority of the british public feel exactly the same way. It’s not racist. We always accept genuine people, but there needs a stop of the huge benefits being automatically paid out for new arrivals. Supply food & clothes etc vouchers instead. Most will probably think twice then. The genuine asylumers will accept it. When you’re freely living in another country, respect their laws and way of life, otherwise don’t go there.

    The real problem are their own countries. If their governments fixed their own internal problems then all this needn’t happen. Sounds to me that it’s their own governments that’s let them down, We should concentrate more on fixing them countries to help the burden of us, so we don’t get all their runaways and crooks. Financial help is a no-no though, like throwing more money in the fire.

    Regardless of the courts ruling, I feel this is one ruling we should ignore. It’s clear evidence that human-rights are now being taken way too far, it’s a crime in itself.

    1. Sorry to butt in, but…

      Would you want foreign repeat-offenders living where you are?

      Good grief, no. I would much rather prefer a local repeat-offender. They are somehow… cleaner, you know. Plus they all ask for your wallet in King’s English, which is always nice.

      I was suddenly offered help with all my luggage by 2 eastern europeans who suddenly rushed towards me at the train station. We kept hold of them tight knowing what their true intentions were.

      And how, pray, did you know their intention? Did their accent betray it?

      These 2 crooks repeatedly breached our human-rights as soon as they arrived illegally

      And what rights would these be?

    2. Cleaner? Kings english? No need for sarcasm. Tut tut.

      Oh dear… Well firstly, don’t even dare attempting to throw the race-card at me. I’ve lived with prejudice for many years, and I know that this isn’t.

      We are a multi-cultural society and like every country you get your minority of racist idiots, but the majority of people wouldn’t shut the doors completely. But there are people of many origins in the UK who also agree that this ruling has gone too far. it has nothing to do with accents, it could be anyone, whether they’re from Somalia or Birmingham. But at least in Birminingham they’re our own people we can deal with ourselves..

      In London. It’s common sense to realise that you don’t get gangs hanging around train station lobbies asking people if they need help with their luggage just out of kindness. You’re naive to believe it.

      Our rights of living without fear of people repeating their crimes that had no legal right to be here in the first place are a major concern for us, so don’t play it down. They “are known” to be repeat offenders.They first broke the law by entering the UK illegally, not a good start, and then proceeded to rob houses, deal in heroin and cocaine. Even repeated road traffic offences. But of course criminals rights matter more to you than their victims. Where’s the compensation for them instead? There is none.

      How would you feel if your house got robbed by one of those people?, or they pushed heroin onto one of your family..Would you allow them to get away with it?, defend their human rights and give them compensation because just they have been inconvenienced? I wonder…

      In other countries like the USA, you can not even get in on a visa visit if you have a criminal record, no matter what crime it is, They have the right idea. Pack off all the crims back to their own country and just deal with their own crims. Unfortunately the UK is the softest touch in the world, We also have to deal with the islamic fundamentalists landing over here preaching their hatred and destruction to the UK. Should we look after them too and think about their human rights when they clearly have no respect for ours?

      The UK is becoming more and more governed by loony-left human-rights eurocrats that don’t want the illegals in their own countries. There’s a lot of hypocrisy there when they shove them all on that little island next door and put up legal bars to stop them from leaving. They know it’s not so easy for us to get rid of them knowing we’re not locked with mainland Europe, and it’s easier for them so they don’t have to worry about the illegals sneaking back in from anywhere else. France doesn’t put up with it like we do. We’re the only country who actually abides by every mad rule imposed on us.

      It is the minority wet liberals that are the danger, they cause parties like the BNP to emerge because the majority of people can only take so much of it. It’ll all end in tears when we’re being used as the dumping ground for Europe’s illegals for so long. We take in enough legit claimants as it is, more than our fair share, in a smaller debt-growing country. The vast majority of the british public can’t be wrong.

      You still haven’t told me where you’re from, if you yourself are originally from the UK, living in the UK, an immigrant in the UK or elsewhere yourself !!! I have a feeling you won’t tell me either because you know I’m right.

      Anyway, Europe are once again our biggest threat since WW2. We need to dump the human rights act and introduce a new self-governed British rights act instead. Every other euro country should do the same.

      I’m awaiting your weak response.

    3. Your comment needs and deserves no answer, it is entirely self explanatory. The ethnic or national origins of comment or post authors are utterly irrelevant and your demands to know them is consistent with the rest of the content of your comments.

    4. Sonnesun

      You have some valid points but I think the way you make then is inappropriate.

      Also, for every valid point there is an invalid one. The point that ‘in Birmingham they’re our own people’ and therefore that makes it slightly better is bordering on the insane; I’m not surprised FM didn’t reply.

      Equally, you seem to miss the point that a lot of crime is committed by what you would perhaps call ‘your’ people i.e the indigenous white population. Burglary, for instance, is overwhelmingly committed by white youths. Your posts are written in such a way that suggests that this is OK.

      I agree with you that Britian is seen as a soft touch and this has resulted in, perhaps, disproportionately high migration levels to the UK and in turn this has generated worryingly high levels of support for the likes of the BNP. However, your posts do need to have a little more balance.

      Lastly, FM’s background is irrelevant but if you did your homework you’d know who he is!

    5. Well I tried googling it out but I still have no idea who FM is. I can’t tell from his username alone. Millions of usernames out there. Still just another blogger so far to me living in a dreamworld :/

      If only there was peace and harmony throughout the world. Unfortunately the world is also dictated by money, or rather the lack of it. There’s more irate people than me out there. I wouldn’t vote BNP personally, because their proposals on immigration and people already living here and even born here go way too far. It’s not beyond from happening still though.

      I try to be balanced but in this case it’s fairly difficult to be, When I mentioned Birmingham, I didn’t say white, black, whatever because I don’t see this as a colour thing. If you’re born here and you break the law here, you get dealt here. If they break the law in another country, they get dealt there before being thrown out, or maybe worse.

      We accept multiculturalism, probably the most accepting of all, but not anyone who abuse the system, it doesn’t matter what colour or race they are, This also applies to to people born here or moved here legit, not just illegal immigrants. Again, I mentioned earlier there are people here from other minority groups who agree about the crazy dangerous-criminal ruling.

      what I mean is that we have enough of our own dangerous criminals to deal with without taking in more from abroad. Not only is he a burglar but one with threats to kill too. We shouldn’t be dictated and forced by another country to accept them, and to rub it in by forcing our taxpayers to give “them” compensation. I would bet that their victims were paid nothing.

      I’m glad you see I do make valid points and agree with the fundamental argument. Crime does seem to pay though. Maybe if I sneak into France pehaps I could do the same. Perhaps not!

    6. I’m awaiting your weak response.

      Oh, I’m sorry I left you with the impression I was trying to have a discussion with you. I forgot my Eastern European accent didn’t show in writing and so you couldn’t judge my intention properly.