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The logistics of survival: updated Somalia country guidance
Credit: AMISOM Public Information on Flickr

The logistics of survival: updated Somalia country guidance

One of the principal arguments run by people seeking to resist removal to Somalia is that their living conditions on return would be so dire as to amount to a breach of the UK’s obligations under the European Convention on Human Rights, and specifically Article 3.

The country guidance case of MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) provided a framework for decision-makers considering these cases, including factors which may or may not lead to a breach of Article 3.

In the new country guidance case of OA (Somalia) Somalia CG [2022] UKUT 33 (IAC) the Upper Tribunal has confirmed that the guidance given in MOJ remains applicable with some minor refinements, and with additional considerations added (see headnote below).

The case also confirms that there must be a causal link between the implementation of the removal decision and the intense suffering or other Article 3 mistreatment to be experienced by the returnee in order for the expelling state to be held responsible.

At 468 paragraphs, it is a detailed decision, but a must-read for anyone involved in a Somali removal case, and especially those involving material deprivation arguments following Paposhvili, AM (Zimbabwe) and Ainte.

The official headnote

1. In an Article 3 “living conditions” case, there must be a causal link between the Secretary of State’s removal decision and any “intense suffering” feared by the returnee.  This includes a requirement for temporal proximity between the removal decision and any “intense suffering” of which the returnee claims to be at real risk.  This reflects the requirement in Paposhvili [2017] Imm AR 867 for intense suffering to be “serious, rapid and irreversible” in order to engage the returning State’s obligations under Article 3 ECHR.  A returnee fearing “intense suffering” on account of their prospective living conditions at some unknown point in the future is unlikely to be able to attribute responsibility for those living conditions to the Secretary of State, for to do so would be speculative.

Country Guidance

2. The country guidance given in paragraph 407 of MOJ (replicated at paragraphs (ii) to (x) of the headnote to MOJ) remains applicable. 

3. We give the following additional country guidance which goes to the assessment of all the circumstances of a returnee’s case, as required by MOJ at paragraph 407(h).

4. The Reer Hamar are a senior minority clan whose ancient heritage in Mogadishu has placed it in a comparatively advantageous position compared to other minority clans.  Strategic marriage alliances into dominant clans has strengthened the overall standing and influence of the Reer Hamar.  There are no reports of the Reer Hamar living in IDP camps and it would be unusual for a member of the clan to do so.

5. Somali culture is such that family and social links are, in general, retained between the diaspora and those living in Somalia.  Somali family networks are very extensive and the social ties between different branches of the family are very tight.  A returnee with family and diaspora links in this country will be unlikely to be more than a small number of degrees of separation away from establishing contact with a member of their clan, or extended family, in Mogadishu through friends of friends, if not through direct contact.

6. In-country assistance from a returnee’s clan or network is not necessarily contingent upon the returnee having personally made remittances as a member of the diaspora.  Relevant factors include whether a member of the returnee’s household made remittances, and the returnee’s ability to have sent remittances before their return.

7. A guarantor is not required for hotel rooms.  Basic but adequate hotel accommodation is available for a nightly fee of around 25USD.  The Secretary of State’s Facilitated Returns Scheme will be sufficient to fund a returnee’s initial reception in Mogadishu for up to several weeks, while the returnee establishes or reconnects with their network or finds a guarantor.  Taxis are available to take returnees from the airport to their hotel.

8. The economic boom continues with the consequence that casual and day labour positions are available.  A guarantor may be required to vouch for some employed positions, although a guarantor is not likely to be required for self-employed positions, given the number of recent arrivals who have secured or crafted roles in the informal economy.

9. A guarantor may be required to vouch for prospective tenants in the city.  In the accommodation context, the term ‘guarantor’ is broad, and encompasses vouching for the individual concerned, rather than assuming legal obligations as part of a formal land transaction.  Adequate rooms are available to rent in the region of 40USD to 150USD per month in conditions that would not, without more, amount to a breach of Article 3 ECHR.

10. There is a spectrum of conditions across the IDP camps; some remain as they were at the time of MOJ, whereas there has been durable positive change in a significant number of others.  Many camps now feature material conditions that are adequate by Somali standards.  The living conditions in the worst IDP camps will be dire on account of their overcrowding, the prevalence of disease, the destitution of their residents, the unsanitary conditions, the lack of accessible services and the exposure to the risk of crime.

11. The extent to which the Secretary of State may properly be held to be responsible for exposing a returnee to intense suffering which may in time arise as a result of such conditions turns on factors that include whether, upon arrival in Mogadishu, the returnee would be without any prospect of initial accommodation, support or another base from which to begin to establish themselves in the city.

12. There will need to be a careful assessment of all the circumstances of the particular individual in order to ascertain the Article 3, humanitarian protection or internal relocation implications of an individual’s return.

13. If there are particular features of an individual returnee’s circumstances or characteristics that mean that there are substantial grounds to conclude that there will be a real risk that, notwithstanding the availability of the Facilitated Returns Scheme and the other means available to a returnee of establishing themselves in Mogadishu, residence in an IDP camp or informal settlement will be reasonably likely, a careful consideration of all the circumstances will be required in order to determine whether their return will entail a real risk of Article 3 being breached.  Such cases are likely to be rare, in light of the evidence that very few, if any, returning members of the diaspora are forced to resort to IDP camps.

14. It will only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which would be reasonable for internal relocation purposes.

15. There is some mental health provision in Mogadishu.  Means-tested anti-psychotic medication is available.

16. Hard drugs are not readily available in Mogadishu, and the focus of substance abuse is khat, cannabis, alcohol and tobacco.  It is not reasonably likely that an ordinary returnee, without significant means or pre-existing connections to criminal elements in Mogadishu, would be able to procure hard drugs, such as heroin and cocaine, upon their return.

Other country guidance given by MOJ

17. The country guidance given at paragraph 408 of MOJ ((xi) of the headnote) is replaced with the country guidance at paragraph (14), above.  Paragraph 425 of MOJ ((xii) of the headnote) should be read as though the reference to “having to live in conditions that will fall below acceptable humanitarian standards” were a reference to “living in circumstances falling below that which would be reasonable for internal relocation purposes”.

 

Nick is a lawyer at Edgewater Legal, simplifying immigration law for individuals and businesses.