FOURTH SECTION

DECISION

Application no . 56090/08 M.S. against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 16 October 2012 as a Chamber composed of:

Lech Garlicki , President, David Thór Björgvinsson , Nicolas Bratza , Päivi Hirvelä , Ledi Bianku , Nebojša Vučinić , Vincent A. D e Gaetano , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 20 November 2008,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court on 20 July 2011 and lifted on 29 November 2011,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, M.S., is a Somali national who was born in 1980 and lives in Swinderby .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant arrived in the United Kingdom at the age of fifteen with his father and siblings. His mother appears to have been in the United Kingdom already. He had left Somaliland at the age of eight and spent the intervening years in Ethiopia . His father claimed asylum with his family, including the applicant, as his dependants; however, this claim was refused. The family were granted exceptional leave to remain and, in time, indefinite leave to remain.

4. The applicant was convicted of arson and abusive or threatening behaviour on 14 March 2000 and sentenced to 33 months in a young offenders ’ institution. Throughout 2005 and 2006, he was convicted of numerous counts of failure to surrender to custody and shoplifting, for which he was fined or sentenced to short periods of imprisonment or community service. On 13 September 2007, he was convicted of attempted robbery with an offensive weapon in a public place and sentenced to 2 ½ years ’ imprisonment. He was notified of his liability to deportation as a result of this conviction on 6 December 2007.

5. The applicant raised a fear of return to Somaliland on 16 December 2007, but on 10 May 2008 he informed the authorities in writing that he did not wish to pursue an asylum claim. He applied to and was accepted onto the facilitated voluntary return scheme on 28 July 2009, but withdrew from the scheme on 3 August 2009 on the basis that he wished to pursue an asylum claim. The basis of his claim was that he would be at risk in Somalia due to his father ’ s previous political involvement. The applicant ’ s asylum claim was refused by the Secretary of State on 17 December 2009.

6. The applicant ’ s appeal against the refusal to revoke his deportation order was dismissed by the First-tier Tribunal (Immigration and Asylum Chamber) on 22 April 2010. The Tribunal upheld the Secretary of State ’ s certification that the applicant, as a danger to the community, was excluded from protection under the Refugee Convention, but went on to consider his claim under Articles 2 and 3. It was found to be wholly incredible that he should be at risk in Somaliland on the basis of his father ’ s former political activities: not only had his father allegedly been involved in politics in central Somalia and not Somaliland, but his father ’ s asylum claim upon entry to the United Kingdom had failed. If the applicant ’ s father was not considered to be at risk in 1995 then, there was no reason that his son should be at risk now. The Tribunal noted that there was a functioning administration in Somaliland, unlike the rest of Somalia , and that the general security situation was stable. The applicant had been born in Somaliland; his father was from the area; and his mother was a member of the Isaaq , which was the majority clan in Somaliland . The applicant also had relatives in neighbouring Djibouti and possibly in central Somalia . He had not established that his rights under Articles 2 and 3 would be breached by his return to Somaliland . In terms of Article 8 it was not considered that the applicant had family life in the United Kingdom and his private life was limited given the amount of time he had spent incarcerated. The substantial public interest in his deportation, given his long history of offending, rendered his deportation proportionate.

7. The applicant sought permission to appeal to the Upper Tribunal; however, this application was refused on 9 August 2010. The applicant sought facilitated voluntary return to Somaliland but again withdrew from the scheme on 7 October 2010. He was released on bail on 12 October 2010 but was rearrested on 11 February 2011 for racially or religiously aggravated assault. He was remanded on bail but rearrested on 22 June 2011 pending his deportation, which was set for 20 July 2011 to Somaliland .

8. The applicant sought an interim measure from this Court to prevent his removal and on 20 July 2011, the Acting President of the Chamber decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be removed until further notice.

9. On 29 November 2011, the Chamber considered information received from the Government regarding the safety of returns to Somaliland and all the facts of the applicant ’ s case, and decided to lift the interim measure previously indicated under Rule 39.

1. Relevant domestic legislation

10. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.

11. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention.

12. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

2. R. (Hussein) v. the Secretary of State for the Home Department [2009] EWHC 2506 (Admin)

13. The central issue arising in this case, heard by the High Court on 14 October 2009, was a claim for damages for false imprisonment by a Somali national who had been held in immigration detention from 16 April 2004 to 21 August 2007. The Government had sought his deportation, as a foreign national criminal, to Somaliland , from where it was believed that the claimant originated. However, due to various factors, the applicant ’ s deportation could not be arranged and he was eventually released on immigration bail. In finding that, from June 2007, the applicant ’ s detention had been unlawful, the High Court referred inter alia to a Memorandum of Understanding between the Government of the United Kingdom and the Somaliland authorities concluded in 2003 and renewed in 2007, which dealt with the question of returns.

14 . The Memorandum of Understanding provided that the Somaliland authorities would accept the return of persons who had no right to remain in the United Kingdom and had a right of return to Somaliland. Such return might be voluntary or enforced as regards the individual, but required the prior consent of the authorities. Such consent would be granted only after the provision of adequate bio-data to satisfy the Somaliland authorities that the individual in question had a sufficient connection to Somaliland, which would generally entail that the person came from a clan with a sizeable representation in the region, and/or had been born (or had parents who had been born) in the region, and/or had family currently residing there. Such bio-data was, in practice, difficult to obtain without a significant level of cooperation from the proposed returnee. Furthermore, on a separate but related note, there had been no practical possibility of enforced returns between August 2004 and July 2006 due to a refusal by all air carriers operating flights to Somaliland to carry passengers who had not consented to travel.

15 . In the case of the claimant in question, his unwillingness and inability to provide sufficient bio-data to satisfy the Somaliland authorities ’ stringent requirements meant that, by June 2007, it should have become evident that his deportation to Somaliland would not be achieved within a reasonable time.

3. Relevant country information on Somaliland

a) United Nations ’ High Commissioner for Refugees

16 . The latest report published by the UNHCR, Eligibility Guidelines for assessing the international protection needs of asylum-seekers from Somalia , published on 5 May 2010, stated as follows:

“The self-declared Republic of Somaliland , which has not been recognized by the international community as an independent sovereign state, has been relatively peaceful and secure with the exception of the problematic presidential elections process ...

UNHCR considers that a situation of generalized violence or events seriously disturbing public order does not exist to the extent that an individual present in either Puntland or Somaliland would be at risk of serious harm.”

b) United Kingdom Border Agency

17. The most recent Operational Guidance Note on Somalia , published on 15 December 2011, provided:

“ Somaliland and Puntland , are in general relatively safe. A long-standing dispute exists over the territories of Cayn , Sool and Sanag , with both Somaliland and Puntland claiming them and the Sool-Sanag-Cayn alliances fighting to remain part of the original state of Somalia . General insecurity resulting from armed violence continues to be the main protection concern in the North-West regions of Somaliland and there has also been an increase in violence and assassinations in Puntland , since the beginning of 2011, mostly in Galkayo , Bossaso and areas around Galgala .

There are major protection concerns around [internally displaced person] settlements both in Puntland and Somaliland, which include overcrowding, severe levels of malnourishment, economic exploitation of children and a lack of physical security, rapes, gang rapes and other instances of sexual and gender-based violence.

The authorities in Somaliland will only admit failed asylum seekers returning from European countries who originate from their territory or those who have close affiliations to the territory through clan membership. In the case of majority clan affiliates, this means those associated with the Isaaq in Somaliland . In Somaliland taxis and 4x4 vehicles can easily travel from Hargeisa , Burao , Lasanod and Garowe . The main transportation between Somaliland and South Central is by lorry. People travel by air between Mogadishu and Hargeisa . The Tribunal in AMM and others ... also found that a person from Somaliland will not, in general, be able without real risk of serious harm to travel overland from Mogadishu International Airport to a place where he or she might be able to obtain an unofficial travel document for the purposes of gaining entry to Somaliland, and then by land to Somaliland. This is particularly the case if the person is female. A proposed return by air to Hargeisa , Somaliland (whether or not via Mogadishu International Airport ) will in general involve no such risks.”

c) Amnesty International

18. In a report titled Human Rights Challenges: Somaliland Facing Elections and published on 17 March 2009, Amnesty International found that:

“While overall human rights and humanitarian conditions have continued to worsen in southern and central Somalia , as well as in Puntland , a stable Somaliland has devoted attention to democratization, institutional capacity-building, stability and development in its 18-year pursuit of international recognition of self-declared independence. While Amnesty International takes no position on Somaliland ’ s claim to independence, the international community should provide the de facto authorities of the Government of Somaliland with necessary support to promote the rights of its people, and to ensure its capacity to firmly establish broad human rights protections.”

In their Annual Report on Somalia , published on 13 May 2011, Amnesty International observed:

“Presidential elections were held on 26 June in the Republic of Somaliland . Ahmed Mohamed Mahamoud Silanyo , a former opposition politician, was declared the new President in July. According to independent observers, the elections were generally free, fair and peaceful. However, media freedom organizations reported some instances of restrictions on journalists in the lead-up to the elections.

Tensions flared in the border areas of Sool and Sanaag claimed by Puntland . A new armed group clashed with Somaliland security forces from May onwards. Thousands of people were reportedly displaced by the clashes.

Displaced people from southern and central Somalia continued to live in difficult conditions.

Minority groups continued to suffer discrimination .”

d) Human Rights Watch

19 . A Human Rights Watch report, Hostages to Peace: Threats to Human Rights and Democracy in Somaliland , was published on 13 July 2009 and stated:

“What Somaliland has accomplished over the years is both improbable and deeply impressive. While much of south/central Somalia remains mired in chaos and bloodshed, Somaliland has built a hard-won peace that it has now maintained for more than a decade. That peace has sheltered Somalilanders from the horrific abuses that have destroyed so many lives across Somalia . At the same time, Somaliland has done much to build the foundations of democratic governance grounded in respect for fundamental human rights. In 2003 and 2005 it held competitive and credible national elections, including parliamentary polls that put the territory ’ s House of Representatives firmly in the hands of the political opposition. There is a vibrant print media and an active and independent civil society. Somaliland has accomplished these things primarily on its own, in one of the world ’ s most volatile regions.”

Human Rights Watch ’ s more recent World Report 2011 – Somalia , published on 24 January 2011, stated:

“After almost two years of delay, Somaliland finally held its presidential election on June 26, 2010. International observers deemed the polls reasonably free and fair despite an isolated incident in the Sool region, where one person was killed. The incumbent President Dahir Riyale accepted defeat and peacefully ceded power to an opposition candidate, further advancing hopes for stability in the northern region.

The situation remains unstable in the contested regions of Sool , Sanag , and Cayn , which lie between Somaliland, in Somalia ’ s northwest, and the autonomous state of Puntland in the northeast. Thousands of civilians were displaced by clan-based clashes and conflicts over resources in the disputed area in June.”

COMPLAINTS

20. The applicant complained that his deportation to Somaliland would breach Articles 3 and 8 of the Convention.

Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 provides as relevant:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with law and is necessary in a democratic society ... for the prevention of disorder or crime ... ”

THE LAW

1. The applicant ’ s submissions

21. The applicant complained that his removal to Somalia would put him at risk of ill-treatment due to the anarchic and violent conditions prevailing in the country and the lack of functioning government.

2. The Court ’ s assessment

a) General principles

22. T he Court recalls its constant 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 ( Ãœner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ ... ). 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, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country ( Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008-...). The assessment of 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 the applicant alleges he or she will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3.

23. The absolute character of the protection conferred by Article 3 also means that it may apply even where the danger emanates from persons or groups of persons who are not public officials. However, in such cases 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 ( H.L.R. v. France , judgment of 29 April 1997, Reports 1997-III, § 40).

24. The Court has also found (see Vilvarajah and Others v. the United Kingdom , 30 October 1991, § 108, Series A no. 215) that an assessment of the foreseeable consequences of expelling an applicant must be carried out in the light of both the general situation prevailing in the receiving state and the applicant ’ s own personal circumstances. The Court has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (see Vilvarajah and Others , cited above, § 111, and Saadi , cited above, § 131) but has never excluded the possibility that a general situation of violence in a destination country will be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (see NA. v. the United Kingdom , cited above, § 115 and Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07 , §§ 218 and 248, 28 June 2011 ).

b) Application to the facts of the case

25 . The Court observes at the outset that the basis of the applicant ’ s domestic asylum claim was that he faced a specific, personal risk as a result of his father ’ s past political involvement, but that he has not pursued this claim before the Court. Rather, he seeks now to rely on the situation of general violence prevailing in Somalia . The Court further notes that the Government have made clear that their intention is to remove the applicant to Somaliland, not to Somalia, and finds therefore that it is the situation prevailing in that region that is relevant to an assessment of the applicant ’ s claim under Article 3.

26. The Court has previously found that the situation of generalised violence prevailing in south and central Somalia is such that the forced return of a person to that country is likely to amount to a breach of Article 3 (see Sufi and Elmi , cited above , §§ 248-250 regarding Mogadishu; § 277 regarding areas controlled by al- Shabaab ; and §§ 291-292 regarding camps for internally displaced persons). However, the Court has not reached any such finding regarding Somaliland , where the prevailing conditions are very different (see Sufi and Elmi , cited above, §§ 79 and 103). The Court has in fact previously found (see Salah Sheekh v. the Netherlands , no. 1948/04, § 139, 11 January 2007) that Somaliland can be categorised as “relatively safe” for those who, like the applicant, originate from the area and have links to the majority clan, and the Court has not since revised this finding.

27. The applicant has not submitted anything to the Court which would tend to indicate that its findings with regard to the situation in Somaliland are no longer applicable or relevant. The Court notes from its examination of the relevant background country evidence on Somaliland (see paragraphs 16-19 above) that the area, unlike south and central Somalia, has a functioning system of government, has remained stable for many years now and does not suffer from a high level of general violence. There is nothing to suggest that the situation in the region is such that a person, merely by being present on the territory, would be subjected to a real risk of Article 3 ill-treatment.

28. Moreover, the Court notes that there is no indication, either in the applicant ’ s submissions to the Court or that the Court can discern from its own examination of the case, that the applicant possesses a profile that would tend to put him at greater risk than any other returnee from the United Kingdom to Somaliland . His asylum claim in the United Kingdom has been rejected and, as noted at paragraph 25 above, he has not in any event sought to pursue it before this Court. The Court also observes that the applicant withdrew his first asylum claim before it could be considered, and has made two applications for assisted voluntary return to Somaliland . Although he subsequently withdrew both applications, the Court finds that these are not the actions of a legitimate asylum seeker with a genuinely held and subjective fear of return.

29. The Court further notes that the applicant does not raise, or appear to possess, any particular disadvantage in terms of his ability to reintegrate himself into Somali society. Although he left Somaliland at a young age, he was brought up by his parents, who are both of Somali origin, in Ethiopia and then the United Kingdom until he reached adulthood. He has not claimed, and the Court does not believe, that he has any problems in understanding or expressing himself in the Somali language, or is anything other than a normally practising Muslim. He has connections to the majority clan and, moreover, it is presumed that his parents have equipped him with a good grasp of Somali culture and social mores, which would permit him to utilise his clan links to his advantage. The Court also notes that he has relatives still living in the region and could no doubt, with the assistance of his parents, make contact with family friends living in Somaliland, who would be able to facilitate his reintegration into life there.

30. In conclusion, given that the applicant does not raise before this Court any specific risk, based on his own personal profile, and that the Court can discern none from its own examination of the case, the Court finds that the applicant has not established that he faces a real risk of ill-treatment if returned to Somaliland . For these reasons, the applicant ’ s complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Article 8 of the Convention

1. The applicant ’ s submissions

31. The applicant complained that his deportation to Somaliland would interfere with his private and family life, relying on his length of residence in the United Kingdom , his young age when he left Somalia and the fact that his close family members were all resident in the United Kingdom .

2. The Court ’ s assessment

32. The Court recalls that, as Article 8 protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual ’ s social identity, it must be accepted that the totality of social ties between settled migrants such as the applicant and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8. Indeed it will be a rare case where a settled migrant will be unable to demonstrate that his or her deportation would interfere with his or her private life as guaranteed by Article 8 (see Miah v. the United Kingdom ( dec .), no. 53080/07, § 17, 27 April 2010). Not all settled migrants will have equally strong family or social ties in the Contracting State where they reside but the comparative strength or weakness of those ties is, in the majority of cases, more appropriately considered in assessing the proportionality of the applicant ’ s deportation under Article 8 § 2. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the “family life” rather than the “private life” aspect (see Maslov v. Austria [GC], no. 1638/03, ECHR 2008 § 63). However, the Court has previously held that there will be no family life between parents and adult children or between adult siblings unless they can demonstrate additional elements of dependence ( Slivenko v. Latvia [GC], no. 48321/99, § 97, ECHR 2003 X; Kwakye-Nti and Dufie v. the Netherlands ( dec .), no. 31519/96, 7 November 2000).

33. The Court observes that the applicant is an adult male of over thirty years old, who has not pointed to any special element of dependency in his relationships with his parents or his siblings. Nor has he claimed to have founded a family of his own. For those reasons, the Court agrees with the domestic courts that the applicant does not enjoy family life in the United Kingdom . It is noted, given the amount of time the applicant has spent incarcerated in the United Kingdom and the lack of evidence as to any particular educational achievements or employment history, that his private life in the United Kingdom is also somewhat limited. However, and having regard to the length of time the applicant has spent in the United Kingdom, it is accepted that he enjoys private life in that country. His deportation to Somaliland would therefore amount to an interference with his private life. It is also clear that the proposed interference would be “in accordance with the law” and in pursuit of a legitimate aim, namely the prevention of crime. The only question remaining for the Court to determine, therefore, is whether the proposed interference would be necessary in a democratic society.

34. The Court has had regard to the factors it has previously set out as being of relevance in determining the proportionality of an interference with private and family life (see Üner v. the Netherlands [GC], cited above, §§ 57-58). The Court notes in particular that the applicant was convicted of attempted robbery with an offensive weapon, which was a crime of considerable seriousness and, furthermore, was not his first offence. The Court also notes that, after his release from prison, the applicant was arrested again on charges of racially aggravated assault. His conduct since the deportation offence, therefore, particularly when combined with his lengthy offending history, offers no reassurance that he has been rehabilitated or poses a low risk of further offending in the United Kingdom . Against these factors, the Court must balance the length of time which the applicant has spent in the United Kingdom and the young age at which he left Somalia, both of which have served to limit the solidity of his ties to Somaliland. It is accepted in that regard that the applicant has stronger ties to his host country than to his country of origin, given the time he has spent living in the United Kingdom and the fact that his parents and siblings are all settled there. Nonetheless, given the seriousness of the applicant ’ s offending history and the limited nature of his private life in the United Kingdom , the Court finds that his deportation to Somaliland would not amount to a disproportionate interference with his private life. For these reasons, the applicant ’ s complaint under Article 8 is manifestly ill-founded and therefore inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Lech Garlicki Deputy Registrar President