EHRM, 11-01-2007, nr. 1948/04

The country report of February 2000 indicated that in the ‘relatively safe’ areas the need for protection by one's own clan was declining as the effectiveness with which regional authorities maintained security was increasing. Although this did not mean that the clan no longer played a role in Somali society, protection by one's own clan or family was no longer considered necessary in the ‘relatively safe’ areas, where the local and regional authorities were generally able to maintain peace and security and to offer an inclusive, neutral form of protection. As a result, the policy pursued as of April 2000 no longer included the principle of clan protection upon return.

While the country report of June 2001 found that the position of minorities in the ‘conflict’ area continued to be bad, it nevertheless stated that despite this insecurity, it was not the case that all persons belonging to a minority had to fear (person-specific) persecution for the sole reason that they belonged to that minority. The June 2001 report further finding a continuation of the trend of a diminishing need for clan (or family) protection in the ‘relatively safe’ areas, the then Deputy Minister of Justice abolished the policy of categorial protection (see paragraphs 42–43 above) for Somalis on 24 September 2001, which until then had still been applied to members of two particular clan families. Even though the situation in the ‘conflict’ and ‘transitional’ areas of the country could lead one to the conclusion that such a policy continued to be called for, the Government believed that an alternative place of abode for all failed Somali asylum seekers, including minorities, was available in the ‘relatively safe’ areas. In addition, asylum seekers, in respect of whom it had been determined that they had a well-founded fear of persecution or that they ran a real risk of being subjected to a treatment within the meaning of Article 3 of the Convention, were not eligible for a residence permit for the purpose of asylum if it was established that they could remove themselves from that feared persecution or real risk by settling elsewhere within the country of origin.

According to the country report of March 2003, Somalia could be divided into the following areas, in terms of the risk run by non-combatants of falling prey to conflict-related violence or political violence:

The March 2004 country report emphasised once more that clan protection was not necessary and that the level of insecurity was not such that all members of a given minority were justified in fearing person-specific persecution due to their minority status, even if it was the case that minorities and the clanless were more likely to become victims of intimidation and abuse by armed members of militias.

In June 2004, officers of the Netherlands Ministry of Foreign Affairs paid a five-day working visit to the city of Bosasso in Puntland. The November 2004 country report was partly based on the findings of this mission.

Since there was not a clear difference in the number of armed clashes between the ‘conflict’ areas and the ‘transitional’ areas as referred to in the March 2003 country report, the report of November 2004 divided Somalia into two regions, namely a ‘relatively safe’ and a ‘relatively unsafe’ region. On the basis of the risk which the civilian population ran of becoming the victim of acts of violence, the two regions were as follows:

As previous reports had done, the report of November 2004 further elaborated on the existence of clans and minority groups in Somalia: beside the dominant Somali nomadic culture, there are various groups with differing cultures, such as farming Somali clan families and non-ethnic Somali minority groups. The farming clan families are regarded as less ‘noble’ by the nomadic clan families, and the status of the minority groups, who are estimated to account for fifteen percent of the population, is even lower. The minorities either lack a clan structure or have a clan structure which is much less pronounced than that of the nomadic clan families. Traditionally, these minority groups have not been covered by Somali clan law and have therefore received no protection, unless a clan has agreed to protect them. In general, the minority groups suffered greatly from the armed conflicts, since they were unarmed and often had some financial resources owing to their occupations. They were easy victims of robbery, plundering and murder by militias. Many members of the minority groups in the south fled in the course of the civil war, particularly to Kenya and western countries, but also to Somaliland and Puntland.

According to the country report, it is not known exactly how many minority groups exist in Somalia. One of the main minority groups is the Benadiri (or Reer Hamar) whose ancestors are people of Persian, Indian, Arab and Portuguese origin who had settled in some of the coastal towns of Somalia since the ninth century and mixed there to varying degrees with the original population and later newcomers. Each Benadiri group can trace its origin back to a single forefather; Benadiri often refer to these descent groups as clans. The Ashraf, consisting of two groups traditionally regarded as descendants of the two grandchildren of the Prophet Mohamed, is one of these Benadiri groups.

The November 2004 country report described the position of minority groups in the ‘relatively unsafe’ regions as bad. Members of these groups were much more likely to become victims of intimidation and assault by armed members of the militias. Notwithstanding this lack of safety, not all people belonging to a given minority group had cause to fear persecution individually simply for membership of the minority, and the situation was also not the same for all minority groups. As the Benadiri did not have a special relationship with one or more of the Somali clan families, they could therefore not count on clan protection. Since the civil war broke out, the Benadiri had tended to be the first victims of robbery and plundering owing to their relatively isolated social position and presumed wealth. As a consequence of these problems, a large proportion of the Benadiri had fled abroad. Those who remained had often lost some or all of their possessions. Although the scale of violence had greatly decreased, they were still in a vulnerable position since they were living in the ‘relatively unsafe’ regions. They were virtually absent from the ‘relatively safe’ areas and their numbers there were too small for general statements to be made about them.

Since the civil war, the populations of towns and cities in the ‘relatively safe’ areas had skyrocketed, partly owing to an influx of displaced persons from the south and partly owing to migration from rural to urban areas. Many displaced persons had managed to settle in their new areas on a lasting basis. Almost all of them had ties with the inhabitants of the area, for example because they were members of the same clan family or because a relative came from there. A social safety net may also be provided by other ties, for instance with old school friends, neighbours or business partners. Displaced persons without such ties almost invariably ended up in miserable settlements for the internally displaced, with no real chance of proper integration.

There were still some 30,000 people living in settlements for displaced persons in Puntland, of whom 28,000 were living in the town of Bosasso. The majority of these people originated from southern Somalia and also comprised members of the Midgan and Bantu minorities. The camp-dwellers perceived poor accommodation and lack of affordable sanitation as the most serious problems. They were living in huts built from discarded materials which did not provide adequate protection against Bosasso's harsh climate. There was also a serious risk of fire, as the high winds could easily cause cooking fires to get out of control. Another problem was security in the camps: theft and occasional crimes of violence. Whenever an incident was reported to the police, there was an investigation and increased patrolling for about a week, but in most cases the police were unable to catch the culprits. However, camp-dwellers said this was not because of discrimination.

In Somaliland, displaced persons were also living in miserable huts that they had built for themselves from discarded materials. In October 2003 the Somaliland Government decreed that all displaced persons who were not originally from Somaliland must leave the country. Although no-one was actually deported, it was made abundantly clear to displaced persons from southern Somalia that they were no longer welcome. Most of them had moved to Puntland or Yemen.

No reports of violent incidents on the islands off the coast of southern Somalia had been received in the period under review. Since 2001, members of the Darod/Marehan clan have had control of these islands, which are also inhabited by members of the Bajuni minority, who, in the service of the former, work in the fishing industry.

According to the November 2004 report, the rate of crime in the ‘relatively safe’ areas was low, certainly compared with other countries in Africa. In general, the local and regional administrative authorities were able to maintain law and order, if necessary with the help of the police. In Somali society, law enforcement had always been primarily the preserve of clan elders, village elders, imams and other community leaders. This traditional form of law enforcement was, by its very nature, much less effective if the victim was a member of a minority group or of a small, poorly armed clan. As a result, displaced persons and unarmed minorities were an easy target for criminals. The police force of a given city contained members of all the clans who lived there, as well as a few members of minority groups and a small number of women. Although the police discriminated against minority groups and displaced persons, they seldom categorically refused to act. Where a displaced person or member of a minority group was a victim of crime, the police would generally take adequate (or reasonably adequate) action, even though it was likely that they would be less inclined to do their best for a displaced person than for local inhabitants belonging to the clans. However, if there was a dispute with a clan member, there was a real likelihood that the police would choose the side of that clan member. In such a case there were indications that police officers may even commit crimes against displaced persons or members of minority groups.

The country report concluded that in general, displaced persons in the ‘relatively safe’ parts of Somalia could be said to have a marginal, isolated position in society. This made them vulnerable, and more than average they were victims of crime. Their vulnerability partly depended on what resources they possessed (money, skills, etc.), but in general their socioeconomic position was significantly worse than that of the local population. They were not persecuted by the local authorities. There was some discrimination by local people, but at least in Somaliland or Bosasso no serious incidents were known to have occurred. However, people were not ready to accept the idea of displaced persons who had no ties whatsoever with their clan becoming genuinely integrated into their community.

Somalis could enter and leave the country overland without restriction, in keeping with ancient nomadic tradition. There were several flights a week to a number of destinations in Somalia from the surrounding countries and the United Arab Emirates. When entering Somaliland via Hargeisa airport, travel documents were checked. The other airports in Somalia operated on the authority of local warlords, who ran them as private businesses. Passengers were not asked to produce travel documents at any of these latter airports.

Since the collapse of Somalia's central government in 1991 there had been no internationally recognised body that issued or extended Somali passports. Travel documents that passed for Somali passports could be bought at markets in Somalia and in neighbouring countries. Officially, Somali passports were not internationally recognised as travel documents, but in practice they were accepted by the countries of the European Union, Somalia's neighbouring countries and the Gulf States, since there was no alternative travel document for Somalis to use. Nor were Somali passports officially recognised as proof of identity.

Somalis returning to Somalia met with no hindrance from the local authorities on arrival. However, in the ‘relatively unsafe’ areas, passengers were sometimes waylaid en route from the airport by militias or criminals who stole all their belongings, often resorting to extreme violence. As a result of the decree of October 2003, Somalis without ties with Somaliland were not normally allowed to live in that entity. There were no formal residence restrictions in the remainder of Somalia. Organised return (voluntary or otherwise) to Somaliland and Puntland required the consent of the local authorities. In the past few years UNHCR had helped many thousands of Somalis return to Somalia, especially to the north. However, the authorities in Somaliland and Puntland had pointed out that there was only limited scope for providing those who returned with work and facilities.

Following the issuance of this country report, the applicant requested the Minister of Foreign Affairs to provide him with documents relating to the working visit of the delegation of the Ministry to Bosasso in Puntland that had been conducted in June 2004. In response, the Minister made public the written account of interviews with fifteen interlocutors conducted by the delegation. A number of passages, which concerned the identity of and background information relating to the interviewees, had been deleted, for reasons in respect of which section 10 § 2 of the Transparency of Public Administration Act (Wet openbaarheid van bestuur) stipulated that access could be withheld (for example for the protection of sources or of the private life of third persons). Administrative proceedings instituted by the applicant aimed at obtaining a complete version of the account were unsuccessful.

The written account of interviews consists of summaries of the information and replies received by the delegation in the course of the interviews, some of which were held in two camps for IDPs. The identities of those interviewed and/or organisations for which they worked have been deleted, and the questions that were put to them are not included in the account.

Some quotes from the account:

A new country report was issued in May 2005. This report is virtually the same as its predecessor, except for the following:

The report divides Somalia into three areas: a ‘relatively unsafe’ area, a ‘relatively safe’ area, and a ‘transitional’ area consisting of the northern provinces of Sool and Sanaag to which both Somaliland and Puntland lay claim. The ‘relatively safe’ area was the same as in the November 2004 country report, except that the south of the province of Mudug was now considered ‘relatively unsafe’.

It was repeated in the May 2005 report that actual deportations from Somaliland had not taken place. However, the many thousands of displaced persons residing in Somaliland were living in constant fear. The country report further refers to the Norwegian Refugee Council, according to whom the situation of displaced persons in Somaliland had worsened; they were the victims of exploitation, extortion and harassment.

The country report further states that the UN had carried out a large-scale study amongst IDPs in Puntland in 2004, in the course of which 99.3% of displaced stated that they felt safe in their settlements. A footnote states that on the basis of this report, the Norwegian Refugee Council — co-author of the report together with the United Nations Office for the Coordination of Humanitarian Affairs — came to a different conclusion: ‘Their small huts made of cloths with often no proper door offer no protection against assaults by men stealing belongings and raping women at gunpoint with impunity.’

The fact that travel documents were checked when entering Somaliland via Hargeisa airport had not changed. The May 2005 report adds that no reports had been received of non-Somalilanders having been refused entry. The report further adds that travel documents were also checked at Bosasso airport in Puntland.

The May 2005 report further specifies that the organised return (voluntary or otherwise) to Somaliland and Puntland requires the consent of the local authorities if it concerns the return of a group of persons.

Between 1 January 2004 and 15 April 2005, 26 Somalis returned voluntarily to Somalia from the Netherlands. Ten of them chose to go to Mogadishu, two to other destinations in the south, thirteen to Hargeisa (Somaliland) and one to Bosasso (Puntland). Only one had a Somali travel document, the others travelled on an EU travel document.

The most recent country report is that of July 2006. According to this report, the ‘relatively safe’ areas were practically the same as those described in the May 2005 report (see paragraph 70 above), except that the provinces of Sool and Sanaag were once again ‘relatively safe’, while the south of the province of Mudug continued to be ‘relatively unsafe’. Moreover, the whole of the town of Galkayo was now considered to belong to the ‘relatively unsafe’ areas.

It was repeated in the July 2006 report that in the ‘relatively safe’ areas, minorities and displaced persons were victims of crime more than average. However, these persons' chances of falling victim to crime were considerably higher in the ‘relatively unsafe’ regions. Minorities were further said to constitute a disproportionately large part of the prison population in the ‘relatively unsafe’ regions.

It continued to be the case that Somalis without ties to Somaliland could not in principle obtain a right to reside there, even if no forced expulsions had taken place. As regards Puntland, no reports had been received of problems experienced by Somalis who hailed from elsewhere in staying there.

In 2005 nine Somalis voluntarily returned from the Netherlands; seven to Mogadishu, one to Kismayo and one to Hargeisa.

In a judgment of 24 June 2003 (Jurisprudentie Vreemdelingenrecht — Immigration Law Reports, ‘JV’ — 2003/352), the Administrative Jurisdiction Division of the Council of State ruled that it did not appear from the country reports that such a serious, widespread and structural infringement of the security situation pertained in the ‘relatively safe’ areas of Somalia that it should lead to the conclusion that the Minister could not reasonably have taken the view that the relative safety there was durable and that the areas provided for an alternative place of abode. Even if it was the case that certain regions of the ‘relatively safe’ areas were temporarily not accessible via the external borders, there was no reason to believe that the Minister could not reasonably have reached the conclusion, as far as minority groups were concerned, that a return to the ‘relatively safe’ areas of Somalia would not constitute an exceptionally harsh measure in connection with the overall situation there.

Since the above-mentioned decision, the Administrative Jurisdiction Division has consistently rejected appeals lodged by failed Somali asylum seekers claiming that they could not settle in the ‘relatively safe’ areas, until, on 28 May 2004, the Division held that a particular interim measure issued by the President of the European Court1. stood in the way of an expulsion to northern Somalia of Somali nationals who belong to a minority and who do not have family or clan ties in northern Somalia (JV 2004/278). Following this decision, the Minister adopted a moratorium on expulsions (vertrekmoratorium) for Somalis belonging to this group on 11 June 2004. The scope of this moratorium was extended to all Somalis who did not hail from the ‘relatively safe’ areas on 20 February 2005, pursuant to a decision of the Administrative Jurisdiction Division of 17 December 2004 (JV 2005/70) in which account was taken of the interim measure issued by the European Court in an application concerning a Somali national belonging to a clan whose members constituted a majority in Puntland2..

Since, according to national law, the duration of a moratorium on expulsions could not exceed one year, and in view of the interim measures issued by the European Court — as well as the interpretation of those measures by the Administrative Jurisdiction Division —, the Minister adopted a categorial protection policy on 24 June 2005 (see paragraphs 40 and 42–43 above). In this context the Minister had regard, in addition to the actions of the European Court, to the nature and geographical spread of the violence in parts of Somalia, as described in the country report of May 2005. Provided that no contraindications exist (in the form of criminal convictions, for instance), the policy applies to Somali asylum seekers who do not originate from Somaliland or Puntland (apart from Sool and Sanaag provinces) and who have not spent more than six months in Somaliland or Puntland, unless that stay took place in a camp for IDPs. It also applies to Somalis originating from the islands off the coast of south Somalia. Even though those islands are considered to be ‘relatively safe’, they can only be reached via ‘relatively unsafe’ territory.

No time-limit has been set for the duration of the policy; it will be reviewed when the European Court reaches a decision on the merits in the cases in which an interim measure has been issued.

In a decision of 22 August 2003 (JV2003/526) the Administrative Jurisdiction Division had regard to the information contained in the country report of June 2001, according to which persons did not have to fear (person-specific) persecution merely because they belonged to a minority. In the light of that information the Administrative Jurisdiction Division found that the Deputy Minister of Justice had correctly considered that the problems which the alien concerned had allegedly suffered as a result of the fact that he belonged to the Reer Hamar — namely slave labour, ill-treatment and intimidation — had not come about as a consequence of an unfavourable interest directed specifically at the alien personally, but of the general situation in the country of origin at that time.

In a case concerning an Afghan national, and with reference to this Court's judgment in the case of Vilvarajah and Others v. the United Kingdom (judgment of 30 October 1991, Series A no. 215), the Administrative Jurisdiction Division held in a decision of 7 November 2003 (JV 2004/17) that, even if an alien is to be expelled to a country where organised, large-scale human rights violations are committed against a group to which that alien belongs, he or she will have to make out a convincing case that specific facts and circumstances exist relating to him or her personally in order to be eligible for the protection offered by Article 3 of the Convention. This passage has since become a standard feature in decisions of the Administrative Jurisdiction Division relating to Article 3.

On 5 December 2003 the Administrative Jurisdiction Division rejected the complaint under Article 3 of the Convention raised in a further appeal lodged by a Somali national, who claimed that she belonged to the Reer Hamar and had been subjected to ill-treatment, including rape (JV 2004/62). The Administrative Jurisdiction Division considered that the alleged events demonstrated neither that the acts committed had been specifically aimed at the appellant personally, nor that she therefore found herself in a position which substantially deviated from that of other members of the Reer Hamar in Somalia.

On 14 December 2002 the Minister of Resettlement, Rehabilitation and Reintegration of the self-proclaimed Republic of Somaliland wrote to the Netherlands Ministers of Justice and Foreign Affairs, informing them of his Government's policy towards the repatriation of rejected asylum seekers. He stated that the Government of Somaliland would not accept the resettlement, voluntary or otherwise, in Somaliland of nationals of Somalia. They did, in principle, accept the voluntary return of Somaliland nationals. However, such voluntary return operations were only to take place within the context of a bilateral relationship between the Somaliland Government and the host Government in accordance with specific agreements and relevant provisions of international law, and the return of rejected asylum seekers in the absence of such agreements would be considered unacceptable and illegal. The only persons eligible for resettlement were Somalilanders (whose nationality was to be verified by the Ministry beforehand), who had not been abroad for more than three years and who were travelling on a Somaliland passport, the Somaliland authorities not accepting the EU travel document or other documents.

In reply to questions from a Member of Parliament, the Dutch Minister for Immigration and Integration stated on 12 March 2003 that the letter from the Somaliland Minister of Resettlement, Rehabilitation and Reintegration did not give cause to announce a moratorium on expulsions. Somaliland not being the only ‘relatively safe’ area of Somalia, rejected Somali asylum seekers still had the possibility of returning to the other ‘relatively safe’ areas, which included Puntland (Records of the Lower Chamber of Parliament — Handelingen Tweede Kamer —, 2002–2003, no. 905, Annex, pp. 1893–94). The Minister added that the Netherlands attached great importance to the successful cooperation in respect of the return of illegal migrants, and that he would inform Parliament of the outcome of any consultations, should these prove possible.

The President of the Puntland State of Somalia addressed a letter to the Netherlands Minister of Foreign Affairs on 24 January 2004, expressing his deep concern about the forceful removal of Somali asylum seekers by Dutch authorities in the absence of any meaningful negotiations with the existing Somali administrations. He stated that his authorities were ‘disappointed by the actions of the Dutch Government to dump … refugees … forcefully [into] the Puntland State of Somalia regardless of which part of Somalia they originally came from without seeking either the acceptance or prior approval [of] our Administration’. The President further wrote that the Puntland State of Somalia did not accept the EU travel document.

The Netherlands Minister for Immigration and Integration transmitted this letter to the Chairman of the Lower House of Parliament on 13 April 2004 (Parliamentary Paper — Kamerstuk —, 2003–2004, 19 637, no. 812). In a cover letter, she stressed that she attached great importance to close cooperation with the (de facto) Somali authorities and was open to possibilities for cooperation with those authorities. She further noted that it did not appear from the letter that the Puntland authorities objected to the voluntary return of Somali rejected asylum seekers, regardless of their ethnic origin or area of origin. As far as forced returns were concerned, the Minister stated that the ‘relatively safe’ area of Somalia consisted of more than Puntland alone. There were, therefore, still possibilities to effect the forced returns of Somalis to the ‘relatively safe’ area of Somalia. The Minister remarked that she considered the use of the term ‘dumping’ in the letter of the President of Puntland misplaced. In this context she elaborated that Somalis who were being removed were given the opportunity in a country of transit to indicate to which part of Somalia they preferred to return. The number of Somalis who had so far been removed to Puntland was small.

In a letter of 20 November 2004 to the Dutch Minister of Justice, the Somaliland Minister of Resettlement, Rehabilitation and Reintegration set out that as a matter of policy, it was impermissible for any forced deportee or rejected asylum seeker to enter Somaliland territory. His Government having become aware of two memoranda of understanding concluded by the Government of the Netherlands with the Dubai Government and Emirates Airlines, respectively, the Somaliland authorities had warned all airlines flying via Dubai International Airport to stop transporting forced deportees to any airport in Somaliland. The Minister added that his Government were ready to discuss ‘how to solve the problem of rejected asylum seekers’.

The EU travel document is based on a Recommendation adopted on 30 November 1994 by the Council of Ministers of Justice and Home Affairs of the European Union (Official Journal of the European Communities no. C 274). Inter alia acknowledging that the great majority of Member States were experiencing difficulties in cases of third-country nationals who were required to be expelled from their territory but were not in possession of travel documents, the Council recommended that a standard travel document valid for a single journey be used as appropriate by all Member States when effecting such expulsions.

Since 1995 the Netherlands have made use of the standard EU travel document as a replacement document in the event of expulsions to a number of countries. It can be used for the return of aliens to their country of origin, as well as for their return to another country to which they are guaranteed admission. It is issued by the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) on behalf of the Minister for Immigration and Integration.

In legal literature, as well as in the Lower House of Parliament and before national courts, it has been argued that the EU travel document as used by the Netherlands is not a lawfully issued document since the above-mentioned Recommendation has not been transposed into Dutch law, and since no authority to issue travel documents for the Minister for Immigration and Integration could be derived from the Passport Act (Paspoortwet). In reply to questions put by Members of Parliament, the Minister for Immigration and Integration denied that the EU travel document lacked a legal basis, and stated that it had not appeared that any of the Somali aliens who had returned, either voluntary or involuntary, to Somalia in 2003 and 2004 — some of whom had travelled on a EU travel document — had been refused entry to the country. She added that if an alien travelling on an EU travel document was nevertheless denied admission to his or her country of origin, the provisions concerning inadmissibles and deportees in Annex 9 to the Chicago Convention on International Civil Aviation applied, on the basis of which the Netherlands would allow such aliens to return to the Netherlands (Records of the Lower Chamber of Parliament, 2003–2004, no. 800, Annex, pp. 1695–96).

In the above-mentioned cover letter to the Chairman of the Lower House of Parliament (see paragraph 94 above), the Minister wrote in respect of the stated non-acceptance by the Puntland authorities of the EU travel document, that the EU travel document could be used to facilitate the return journey, be it voluntary or involuntary, of Somali aliens who were not, or no longer, in possession of a Somali passport. In this context the EU travel document was intended to serve as a travel document rather than a border-crossing document. Whether or not entry to Somalia was granted depended on the question if the person concerned was of Somali origin and/or if he or she was considered as such by the (de facto) authorities.

In the decision of 28 May 2004 cited above (paragraph 86), the Administrative Jurisdiction Division of the Council of State held as follows in response to the appellant's claim that the use of the EU travel document was unlawful:

This report, dated August 2003, was commissioned by UNHCR and written by Professor Menkhaus. According to the author, while the chronic and widespread level of underdevelopment and insecurity in Somalia — especially south-central Somalia — places a large portion of the population at risk, some sections of the population are especially vulnerable to human rights abuses. Two of these groups are IDPs and members of minorities and weak clans. As regards the latter group, Menkhaus writes:

According to Menkhaus, human rights violations in Somalia remain endemic and very serious, despite some progress having been made since the early 1990s. Menkhaus distinguishes the following three categories of human rights violations: violations of the rules of armed combat; human rights violations perpetrated by criminals which go unaddressed by local authorities; and human rights violations perpetrated by political authorities themselves. As regards the second category — criminal violations of human rights — he writes inter alia:

Menkhaus goes on to list a number of crimes, whose perpetrators are rarely held accountable by local authorities. This includes discrimination against minorities, about which he writes:

In this report, dated 20 September 2004 and written for the Schweizerische Flüchtlingshilfe, Professor Menkhaus writes, inter alia, that ‘the most important common element of personal security across all of Somalia is clan affiliation.’ In his view, IDPs constitute the most vulnerable group in the country:

According to Menkhaus, ‘… the zone of Somalia from Galkayo to the Kenyan border is the most conflict-ridden and lawless portion of the country’. Puntland is described as being

Somaliland is said to have remained ‘a zone of impressive law and order …, with very low crime rates and a high degree of public safety’.

In this report, published on 17 March 2005, Amnesty International urgently calls on the Transitional Federal Government, which was about to begin a five-year transitional period intended to bring Somalia back into the international community of nations, to make human rights protection one of its central and constant aims. Under the heading ‘Protection of minority rights’, the report states as follows:

The ‘Operational Guidance Note Somalia’, issued on 5 May 2006, contains a summary of the general, political and human rights situation in Somalia and provides information on the nature and handling of asylum claims frequently received from nationals/residents of that country.

The Note states that, although the country's human rights record remained poor and serious human rights abuses continued in 2005, the human rights situation was better in Somaliland and Puntland than in other parts of Somalia. It further set out that Somali society is characterised by membership of clan families (which are sub-divided into clans and sub-clans) or membership of minority groups, and that an individual's position depends to a large extent on their clan origins. In general terms, a person should be safe in an area controlled by their clan, and any person, irrespective of clan or ethnic origin, will be safe from general clan-based persecution in Somaliland and Puntland. The chronic and widespread level of underdevelopment in Somalia makes a large portion of the population vulnerable not only to humanitarian crisis, but also to violations of their human rights.

In respect of persons belonging to the Benadiri minority, the Note states the following:

In the executive summary of this report, which was published on 10 August 2006, the following is stated:

This report, which appeared on the BBC News website on 15 August 2006, tells of three Belgian immigration officials having been apprehended in Hargeisa, the Somaliland capital, when they arrived there on a flight from Ethiopia with a man they had deported from Belgium. In the report, Somaliland's Minister of Aviation is quoted as saying that the men did not have visas to enter Somaliland or the prior consent necessary to deliver a deportee there, and that the deportee had been sent back to Ethiopia on the flight on which he had arrived.

In their letter of 7 July 2005, informing the Court that the applicant was eligible for a residence permit pursuant to the categorial protection policy (see paragraph 40 above), the Government suggested that this development might lead the Court to strike the application out of its list of cases on the basis of Article 37 of the Convention. Article 37 reads:

The applicant requested the Court not to strike the case out.

Noting that the applicant intends to pursue the application, the Court will examine whether the matter has been resolved. While it is true that the applicant has been issued with a residence permit (see paragraph 40 above) as a result of which he is not, at present, liable to expulsion, the Court can nevertheless not find that this constitutes a solution of the matter. After all, the decision establishing the categorial protection policy unambiguously states that that policy will be reviewed when the Court has decided on the merits of cases lodged by Somali nationals in which it has issued an interim measure (see paragraph 87 above). Bearing in mind that a strike out entails that no decision is taken on the merits of a case, it would thus appear that the Government do not consider the matter solved but rather want the Court to continue its examination of the application. This would in any event appear to be the most efficient way of proceeding since if, following a decision striking the application out of the list, the categorial protection policy was to be withdrawn, the applicant would in all probability seek the application's restoration to the list pursuant to paragraph 2 of Article 37.

In the absence of ‘any other reason’ within the meaning of Article 37 § 1 (c), the Court finds, therefore, that no circumstances pertain on the basis of which the application should be struck out of its list of cases.

The Government submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. Firstly, he had failed to lodge a further appeal with the Administrative Jurisdiction Division of the Council of State in the proceedings on his application for asylum. Secondly, an appeal lay against the dismissal of his objection against the manner of his expulsion which, in so far as the Government were aware, the applicant had not used.

The applicant argued that, in view of its case law, a further appeal to the Administrative Jurisdiction Division would not have stood any chance of success and this did therefore not constitute a domestic remedy which he was required to exhaust. As regards the decision on his objection lodged on the basis of section 72 § 3 of the Aliens Act 2000 — which was in any event not capable of providing him with an effective remedy against expulsion —, the applicant pointed out that he had appealed that decision.

The Court reiterates the relevant principles as to exhaustion of domestic remedies as set out in, inter alia, its judgment of 28 July 1999 in Selmouni v. France ([GC], no. 25803/94, §§ 74–77, ECHR 1999-V). The purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The obligation to exhaust domestic remedies is, however, limited to making use of those remedies which are likely to be effective and available in that their existence is sufficiently certain and they are capable of redressing directly the alleged violation of the Convention. An applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail.

The Court observes that in his appeal to the Regional Court against the refusal of his asylum application the applicant argued that that application should not have been rejected and that the ‘relatively safe’ areas of Somalia did not constitute an internal flight alternative (see paragraph 33 above). It is true, as the Government have pointed out, that following the dismissal of the appeal by the Regional Court a subsequent remedy in the shape of a further appeal to the Administrative Jurisdiction Division of the Council of State was available to the applicant (see paragraph 44 above). Upon advice by counsel the applicant chose not to have recourse to this remedy (see paragraph 35 above).

The Court considers that, although the Administrative Jurisdiction Division may in theory have been capable of reversing the decision of the Regional Court, in practice a further appeal would have stood virtually no prospect of success. In this context it notes, firstly, that on the same day the Regional Court rejected the applicant's appeal, the Administrative Jurisdiction Division specified — and has ever since repeated — that an individual member of a group against which organised, large-scale human rights violations are committed must make a plausible case for believing that specific facts and circumstances exist relating to him or her personally in order to qualify for the protection offered by Article 3 (see paragraph 89 above). Pursuant to a subsequent decision of the Administrative Jurisdiction Division, concerning a Somali national who, like the applicant in the present case, belonged to the Reer Hamar, this means that the acts committed must have been specifically aimed at the person of the individual concerned and that he or she must therefore have found themselves in a position which substantially deviated from that of other members of the Reer Hamar in Somalia (see paragraph 90 above). The applicant, however, has never argued that he was treated differently, or substantially worse, than other members of the Reer Hamar; on the contrary, he has stated that the other Ashraf families in the village of Tuulo Nuh were subjected to the same treatment as was meted out to him and his family (see paragraph 7 above). It is, therefore, difficult to see how the Administrative Jurisdiction Division could have come to a different conclusion in the case of the applicant.

Secondly, the Court considers that the applicant's argument that no internal flight alternative existed was similarly bound to fail, in view of the Administrative Jurisdiction Division's consistent case law at the relevant time, to the effect that an alternative place of abode in the ‘relatively safe’ area of Somalia was available to members of minority groups (see paragraphs 85–86 above).

In respect of the complaint relating to the manner of his expulsion, the Court observes that the applicant — contrary to what the Government contended — did lodge an appeal against the dismissal of his objection, as well as an, equally unsuccessful, further appeal (see paragraph 39 above). The fact that these proceedings were still pending at the time the applicant lodged the present application with the Court cannot be held against him in this context since the act of lodging the objection did not suspend his expulsion, and his request for a provisional measure to stay his expulsion had been turned down (see paragraphs 36–37 above).

The Court accordingly finds that the Government's plea of inadmissibility for non-exhaustion of domestic remedies must be dismissed.

The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.