EHRM, 10-09-2015, nr. 4601/14

The applicant submitted that, should the expulsion order against her be enforced, she would face a real risk of either being killed by her uncles because she had refused to agree to a forced marriage before fleeing Somalia or being forced to marry someone against her will again upon return. She also stated that the general situation in Somalia was very severe for women, in particularly for those who lacked a male network. As a consequence, she would risk having to live alone in a refugee camp, which would expose her to serious danger. In this respect, she referred to available country information which, she claimed, the Swedish authorities had ignored.

The applicant challenged the credibility analysis which had been made by the Migration Board and the Migration Court in her case and which were used by the respondent Government in their submissions. In her view, a general assessment of credibility should not be made; instead, the essential parts of her statement should be assessed. Accordingly, the fact that she had applied for a residence permit in three different countries and there had given different names was of no significance. She argued that the names were essentially just different spellings — with the addition of her grandfather's name in one case — and that it was not her but the respective authorities that had recorded her name in the various applications. In this connection, she also claimed that she had tried to avoid being returned in accordance with the Dublin Regulation to Italy, a country where a young Somali woman like her would be at risk of abuse. Also the fact that she had not initially mentioned her forced marriage to the Swedish authorities had no bearing on her credibility; this was so because she did not see herself as a married woman since the marriage had been forced upon her in the Somali tradition. To acknowledge that marriage would have given it legitimacy and would have involved another violation of her rights.

The applicant further asserted that all her circumstances had been clarified at an oral examination at the Migration Board in January 2013, which was allegedly the first time that she had had a public counsel to assist her. Not having had access to counsel before this interview, she should not be criticised for the fact that some circumstances had come to light late in the asylum proceedings. Also, given that her credibility had been called into question, the Migration Court ought to have held an oral hearing in the case.

Referring to her submissions to the Swedish authorities and the Court, the applicant claimed that she had given a highly detailed story and had submitted strong country reports of ill-treatment of women in Somalia to show that she would be subjected to treatment contrary to Article 3 upon return to that country. Contrasting her situation with that of the applicant in the case of K.A.B. v. Sweden (no. 886/11, 5 September 2013), she pointed out that that applicant was a man and thus would not face gender-based ill-treatment in Somalia, which allegedly exposed women to a near 100 per cent risk of abuse. In the applicant's view, discrimination and violence against women had increased significantly in recent years. Also the general security situation in the country had deteriorated since the K.A.B. judgment.

The applicant argued that, not having been back to Somalia for almost ten years and not having had any contact with her relatives during that period, she no longer had any close connections in the country. Thus, she would have no access to a male network upon return. While gender-based ill-treatment affected all women in Somalia, also those who had a family or social network, she was accordingly particularly vulnerable. The risks facing her were further exacerbated by the fact that there were no functioning authorities in Somalia and she thus had nowhere to turn to get protection.

The Government acknowledged that the general security situation in Mogadishu remained serious. They further noted that there were reports of general discrimination against women and widespread sexual and gender-based violence in Somalia. Furthermore, since the state was reportedly unable to provide effective protection in south and central Somalia, including Mogadishu, women with no resources or without the protection of a male network were considered likely to be in need of international protection. However, the Government contended that recent country-of-origin information did not suggest that there had been any significant increase in the general level of violence since the Court's ruling in K.A.B. v. Sweden. Thus, allegedly, the Court's assessment in that case remained valid and the situation in Mogadishu, including the situation for women, was not of such nature as to place everyone who was present in the city at a real risk of treatment contrary to Article 3. In the Government's view, the relevant issue in the present case was therefore whether the applicant's personal situation was such that her return to Mogadishu would contravene that provision.

In regard to the applicant's personal situation, the Government first asserted that it had been thoroughly examined by the Migration Board and the migration courts. The Board had conducted several interviews with the applicant in the presence of an interpreter whom she had confirmed that she had understood well. Moreover, throughout the proceedings, she had been represented by appointed counsel. Her counsel had also been given the opportunity to submit written opinions on the minutes of all interviews held by the Board. Holding that an oral hearing before the Migration Court had not been called for in the circumstances of the case, the Government further pointed out that the applicant and her counsel had been able to argue her case in writing before that court and the Migration Court of Appeal.

The Government agreed with the national instances that there were several reasons to seriously question the veracity of the applicant's statements in the case. They first pointed to the fact that, before arriving in Sweden, she had applied for asylum in Italy and the Netherlands and had, on each occasion, used different names and dates of birth. Furthermore, while she arrived in Sweden in 2007, she had not contacted the Swedish migration authorities to apply for asylum until the end of 2011, and there was thus reason to question her perceived need of protection.

The Government also submitted that the applicant had provided contradictory and altered information in central aspects of her account, for which she had not provided satisfactory explanations. For instance, when she first applied for asylum in 2011 she had claimed that she had left Somalia because of the war, whereas at the interview held in January 2013 she had argued that she feared ill-treatment from her family. Also, whereas she had initially stated that she did not know how she had sustained the injuries in her hip and legs as she had been very little when it had happened, in 2013 she had submitted that the injuries were a result of the abuse she had been subjected to by her male relatives.

Furthermore, in regard to her marital status, the applicant had claimed consistently throughout the initial migration proceedings that she was not married. However, at the interview in January 2013 she had stated that she had left Somalia to escape a forced marriage to an older man arranged by her male relatives. In the Government's view, the applicant had thus changed her account as regards the main ground for her alleged need for protection. While she had explained before the Migration Court that she did not consider herself to be married, since she had not consented to the marriage or attended a wedding ceremony, the Government contended that it would have been reasonable to expect her not to omit this fundamental aspect of her claim when initially asked to explain why she was in need of protection in Sweden.

The Government further noted that the applicant's claim in support of her request for a re-examination of her case — that she had recently been informed that her uncle had joined al-Shabaab, murdered her sister and forced her brother to join al-Shabaab and that she would risk being stoned to death upon return — had been submitted without any information on how or by whom she had been informed about these events. The Government agreed with the Migration Board that a mere statement from the applicant about her uncle's actions was not sufficient to assume that she would risk being stoned or subjected to any other ill-treatment if returned to Somalia.

In conclusion, the Government asserted that the applicant had failed to substantiate her claim that her family and male relatives had subjected her to ill-treatment or that they would do so in the future. Consequently, also her allegation that, upon return to Mogadishu — where she had stated that her brother and uncles reside, she would be a lone woman without the protection of a male network lacked credibility. Rather, nothing suggested that she would need to live in a settlement for displaced persons. Accordingly, notwithstanding the security situation in Mogadishu in general, and for women in particular, the Government was of the opinion that the forced return of the applicant to Mogadishu would not give rise to a violation of Article 3.

It is settled case-law that Contracting States have 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 (see, for example, Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such a case, Article 3 implies an obligation not to deport the person in question to that country (Tarakhel v. Switzerland [GC], no. 29217/12, § 93, ECHR 2014, with further references).

The assessment whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment allegedly facing the applicant upon return must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (Tarakhel v. Switzerland, cited above, § 94). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (K.A.B. v. Sweden, cited above, § 69).

The assessment of the existence of a real risk must necessarily be a rigorous one (Saadi v. Italy [GC], no. 37201/06, § 128, ECHR 2008). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3. Where such evidence is adduced, it is for the Government to dispel any doubts about it (Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 214, 28 June 2011). In this respect, the Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker's submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (K.A.B. v. Sweden, cited above, § 70).

If the applicant has not been extradited or deported when the Court examines the case, the material point in time must be that of the Court's consideration of the case. It is the present conditions that are decisive and it is therefore necessary to take into account information that has come to light after the final decision was taken by the domestic authorities (K.A.B. v. Sweden, cited above, § 71).

The assessment must focus on the foreseeable consequences of the removal of the applicant to the country of destination, which should be considered in the light of the general situation there as well as the personal circumstances of the applicant. In this connection, and where it is relevant to do so, the Court will have regard to whether there is a general situation of violence existing in the country of destination. The question for the Court to consider is 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 is established, the applicant's removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two. However, it is clear that not every situation of general violence will give rise to such a risk. On the contrary, the Court has made it clear that 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 (Sufi and Elmi v. the United Kingdom, cited above, §§ 216 and 218, and K.A.B. v. Sweden, cited above, §§ 72 and 76).

It should finally be mentioned that, in cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention Relating to the Status of Refugees. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other contracting or non-contracting states, agencies of the United Nations and reputable non-governmental organisations (K.A.B. v. Sweden, cited above, § 74).

To begin with, it should be noted that the Migration Board concluded that the applicant originates from Mogadishu and that the Board as well as the Migration Court accordingly examined the general situation in that city and the applicant's personal circumstances there. In the Court's view, it is thus clear that, if deported from Sweden, the applicant will be sent to Mogadishu. Moreover, as there is an international airport in Mogadishu, there is no risk that she will have to transit through or end up in other parts of Somalia. The following examination of the case will therefore deal with the issue whether a deportation to Mogadishu would involve a breach of the Convention.

In regard to the general situation, the Court found in June 2011 that the violence in Mogadishu was of such a level of intensity that anyone in the city would be at real risk of treatment contrary to Article 3 of the Convention (Sufi and Elmi v. the United Kingdom, cited above, § 250). In reaching that conclusion, the Court had regard to ‘the indiscriminate bombardments and military offensives carried out by all parties to the conflict, the unacceptable number of civilian casualties, the substantial number of persons displaced within and from the city, and the unpredictable and widespread nature of the conflict’ (ibid., § 248).

However, in September 2013 the Court drew the opposite conclusion. Taking into account the most recent information about Mogadishu, it found that, although the human rights and security situation in the city was serious and fragile and in many ways unpredictable, it was not of such a nature as to place everyone present there at a real risk of treatment contrary to Article 3. In this respect, it noted that ‘al-Shabaab is no longer in power in the city, there is no front-line fighting or shelling any longer and the number of civilian casualties has gone down’ (K.A.B. v. Sweden, cited above, § 91).

The Court is now called upon to assess, for the third time, whether the prevailing level of violence in Mogadishu is of such intensity that anyone in the city would be at real risk of treatment contrary to Article 3. In doing so, it will have regard to, among other things, the criteria which it applied on the two earlier occasions and which had been identified by the United Kingdom Asylum and Immigration Tribunal in AM & AM ((armed conflict: risk categories) Somalia CG [2008] UKAIT 00091): ‘[F]irst, whether the parties to the conflict were either employing methods and tactics of warfare which increased the risk of civilian casualties or directly targeting civilians; secondly, whether the use of such methods and/or tactics was widespread among the parties to the conflict; thirdly, whether the fighting was localised or widespread; and finally, the number of civilians killed, injured and displaced as a result of the fighting’. The Court noted that ‘while these criteria [were] not to be seen as an exhaustive list to be applied in all future cases’, they formed an ‘appropriate yardstick by which to assess the level of violence in Mogadishu’ (Sufi and Elmi v. the United Kingdom, cited above, § 241, and K.A.B. v. Sweden, cited above, §§ 77 and 86).

As has been mentioned above, the Court concluded in K.A.B. v. Sweden that the general situation in Mogadishu was not such that returns to that city would breach Article 3. The question is therefore whether the situation has worsened since then, that is, since September 2013. The UNHCR, reporting in January 2014 on the period that had to a large extent been assessed by the Court in K.A.B., found that, while security in Mogadishu had improved during the preceding few years, al-Shabaab were still able to stage attacks that caused civilian deaths and injuries every week. In 2013 the outright fighting in the city had gone down, but the number of dead and injured civilians had reportedly increased. Government and allied forces often failed to provide protection or security for civilians and were themselves a source of insecurity (see paragraph 35 above). Also in January 2014, the Swedish Migration Board noted that, although the human rights situation was considerably better in areas with a strong presence of AMISOM or the Ethiopian army (thus including Mogadishu) than in areas controlled by al-Shabaab, it was still uncertain whether the police, the courts and other authorities were at all functioning. Moreover, SNAF soldiers were reportedly robbing and raping civilians. These assessments were confirmed in the Migration Board's report from April 2015 (paragraph 29). The UN Secretary-General reported in May 2015 that the overall security situation in Somalia remained volatile and that attacks continued in Mogadishu, including casualties among government officials, civilians and security personnel (paragraph 39).

It is thus clear that the general security situation in Mogadishu remains serious and fragile. The available sources do not, however, indicate that the situation has deteriorated since September 2013. For example, in the Danish/Norwegian report of March 2014 (see paragraph 25 above), the UNDSS and an international NGO were reported as saying that there had been security improvements since April 2013. Also the conclusions drawn by the United Kingdom Upper Tribunal in MOJ & Ors (paragraphs 31-32) suggest that there has been an improvement. Given the high volume of oral and written evidence examined by the Tribunal, the Court considers that its assessment must be accorded great weight. Among other things, the Tribunal concluded that there had been durable change in the sense that the al-Shabaab withdrawal from Mogadishu was complete and there was no real prospect of a re-established presence within the city. The indiscriminate bombardments and military offensives mentioned by the Court in its 2011 judgment in Sufi and Elmi v. the United Kindom had been replaced by al-Shabaab attacks against carefully selected targets — politicians, police officers, government officials and those associated with non-governmental and international organisations — that did not include ‘ordinary civilians’ or diaspora returnees. The Tribunal further considered that the areas and establishments at which these attacks were aimed were largely predictable and could be reasonably avoided by the citizens. Moreover, while the statistical information concerning casualty levels was deficient and unreliable, the cessation of confrontational warfare in Mogadishu and the changed type of attacks by al-Shabaab were found to have reduced the level of civilian casualties since 2011. The Tribunal also had regard to the ‘huge’ number of people returning to the city, where new economic opportunities were available.

Consequently, having regard to the information available concerning the present situation in Mogadishu, the Court finds that the assessment made in K.A.B. v. Sweden (cited above, §§ 87–91) is still valid. Thus, there is no indication that the situation is of such a nature as to place everyone who is present in the city at a real risk of treatment contrary to Article 3. The Court must therefore establish whether the applicant's personal circumstances are such that her return to Mogadishu would contravene that provision.

It must be stressed at the outset that the profile of the present applicant is different from that of the applicant in K.A.B. v. Sweden. While that case concerned a man born in 1960, the present applicant is a woman, born in 1988, who has been living abroad for almost ten years after having left Somalia when she was 17 years of age.

The various reports attest to the difficult situation of women in Somalia, including Mogadishu. The UNHCR has identified women and girls as a particular risk group (see paragraph 37 above). While there has been legislative progress in the form of the development of a sexual offences bill, there are several concordant reports about serious and widespread sexual and gender-based violence in the country (paragraphs 27, 30, 33–34 and 38). Not only civilians but also members of SNAF, AMISOM and other armed forces are perpetrators of abuse against women. Women are unable to get protection from the police and the crimes are often committed with impunity, as the authorities are unable or unwilling to investigate and prosecute reported perpetrators. It is also clear that women are generally discriminated against in Somali society and that they hold a subordinate position to men. As shown by the report of the Swedish Migration Board, women are reliant on men in many aspects of societal life (paragraph 30). In the Court's view, it may be concluded that a single woman returning to Mogadishu without access to protection from a male network would face a real risk of living in conditions constituting inhuman or degrading treatment under Article 3 of the Convention.

Turning to the specific circumstances of the applicant, it should first be noted that she was interviewed by the Migration Board on several occasions with the assistance of an interpreter and that, at least at the lengthy asylum interview in January 2013, she was represented by public counsel. While the Migration Court did not hold an oral hearing in the case, the applicant and her counsel nevertheless had ample opportunities to present her case orally and in writing during the proceedings as a whole. Moreover, both the Migration Board and the Migration Court made careful examinations of the submissions made and delivered decisions containing extensive reasons for their conclusions. In the Court's view, the domestic authorities have made an adequate investigation and assessment of the applicant's case.

Like the domestic authorities and the respondent Government, the Court has serious misgivings about the veracity of the applicant's statements. Her use of slightly different names and birth dates in the asylum applications filed in Italy, the Netherlands and Sweden is not of particular importance in this respect. However, it is to be noted that the applicant stayed in Sweden for at least four years without contacting the authorities. Thus, for a considerable period of time, she did not try to regularise her stay in the country by applying for asylum. If the threats against her were real, it was in her own interest to present them to the Migration Board as soon as possible in order to obtain adequate protection. Her explanation — that she was trying to avoid a transfer to Italy under the Dublin Regulation — is not convincing. More importantly, while certain details of an asylum seeker's story may come to light only at a later stage of the proceedings, it is remarkable that, when the applicant applied for asylum in Sweden in December 2011, she did not mention anything relating to the claim which is now her principal reason for fearing a return to Mogadishu. Thus, she did not say that she had been forced to marry an older man and did not claim that she and her secret boyfriend had been beaten by her uncles when they had tried to escape. Furthermore, she stated that she could not remember how she had sustained her hip injuries as she had been very young at the time. The allegations that she had been forcibly married and beaten by her uncles, the latter leading to her hip injuries and a few months' of hospitalisation, were presented to the Migration Board only after more than a year had passed since her asylum application. Again, her explanation for this omission — that she did not consider herself to be married — cannot be accepted. While she may have had good reasons not to characterise herself as a married woman, there was no reason for her to leave out these key events from her initial asylum story if they had actually happened. With respect to the applicant's claim that one of her uncles had joined al-Shabaab, killed her sister and forced her brother to also join al-Shabaab, the Court notes that this was submitted to the Migration Board in a petition to have the enforcement of her deportation order stopped, at a time when her asylum application had already been finally rejected. It appears that the applicant did not offer any details on how and from whom she had received this information. Having regard to the lack of substantiation and to the available information that there is no forced recruitment to al-Shabaab in Mogadishu (see paragraph 32 above), this claim appears to have been a late invention to bolster the applicant's case.

In sum, the Court considers that there are significant inconsistencies in the applicant's submissions. The claims concerning her personal experiences and the dangers facing her upon return have not been made plausible. Accordingly, there is no basis for finding that she would return to Mogadishu as a lone woman with the risks that such a situation entails. In this connection, the Court notes that the applicant was informed of the death of her father in 2010 and her mother in 2011, indicating that she has retained contacts in Mogadishu. Moreover, she has family living in the city, including a brother and uncles. She must therefore be considered to have access to both family support and a male protection network. Furthermore, it has not been shown that the applicant would have to resort to living in a camp for refugees and IDPs.

Consequently, while not overlooking the difficult situation of women in Somalia, including Mogadishu, the Court cannot find, in this particular case, that the applicant would face a real risk of treatment contrary to Article 3 of the Convention if returned to that city. Thus, her deportation to Mogadishu would not involve a violation of that provision.