Resolution CM/ ResDH ( 2013) 197 Sufi and Elmi against the United Kingdom

Execution of the judgment of the European Court of Human Rights

(Applications Nos. 8319/07 and 11449/07, judgment of 28 June 2011, final on 28 November 2011)

(Adopted by the Committee of Ministers on 26 September 2013 at the 1179th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)681 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of Judgments of the European Court of Human Rights

Action Report

Sufi and Elmi v UK: app N o. 8319/07 and 11449/07; judgment final on 1 December 2011

Information submitted by the United Kingdom Government on 31 May 2013

Case Summary

1. Case description:

The two applicants were both Somali nationals who complained that their proposed removal to Mogadishu, Somalia, would expose them to a real risk of treatment in breach of Article 3 ECHR. The Court held that there had been a violation of Article 3 in respect of each applicant.

The Court considered that any returnee to Mogadishu would be at real risk of Article 3 ill-treatment on account of his presence there, unless sufficiently well connected to powerful actors in the city to obtain protection. The possibility of internal flight to certain areas of Somalia may enable the returnee to avoid the risk of Article 3 ill-treatment, if he has close family connections in the area concerned where he could effectively seek refuge. If the returnee ’ s family connections are in a region which is under the control of al ‑ Shabaab , or if the region could not be accessed without travelling through an al- Shabaab controlled area, the returnee would be exposed to a real risk of Article 3 ill-treatment unless he had recent experience of living in Somalia and could therefore avoid coming to the attention of al- Shabaab . The Court also found that where it is reasonably likely that a returnee would find himself in an IDP camp, such as those in the Afgooye Corridor, or in a refugee camp, such as the Dadaab camps in Kenya, there would be a real risk that he would be exposed to treatment in breach of Article 3 on account of the humanitarian conditions there.

In respect of the first applicant, the Court found that if he were to remain in Mogadishu there would be a real risk of Article 3 ill-treatment. If he were to attempt to relocate to his town of origin, Qoryley , there would be a real risk of Article 3 ill-treatment as the town is under the control of al- Shabaab and the applicant has been in the United Kingdom since 2003. The Court found it likely that the first applicant would find himself in an IDP settlement or refugee camp, facing a real risk of treatment in breach of Article 3 to which he would be particularly vulnerable on account of his psychiatric illness.

As regards the second applicant, the Court found that if he were to remain in Mogadishu there would be a real risk of Article 3 ill-treatment. His membership of the majority Isaaq clan would not be sufficient to protect him. He would not be able to re-locate to a safe area within Somalia. Although members of the Isaaq clan are generally permitted to return to Somaliland where there is no such risk, the fact that the Government have chosen not to issue removal directions to Somaliland appears to contradict their assertion that he would be admitted there.

Individual Measures

2. Just satisfaction:

- The just satisfaction award has been paid; evidence supplied.

3. Individual measures:

- The Government ’ s general approach is that removal action will not be taken against either applicant while the country situation remains largely unchanged and if they would be exposed to a real risk of treatment in breach of Article 3 of the Convention. Both applicants will be granted limited periods of leave to remain for six months in accordance with the published Discretionary Leave policy of the United Kingdom Border Agency for as long as the risk of treatment contrary to Article 3 remains. If the Secretary of State were to conclude that the situation in Somalia had changed since the promulgation of the Court ’ s judgment and that the Article 3 risk no longer existed, the applicants would also be granted a suspensive in-country right of appeal against that decision.

- In line with that approach, the Government granted Mr Sufi six months ’ Discretionary Leave in the United Kingdom from 31 August 2012 until 2 March 2013; this has now expired. Mr Sufi was convicted of a further offence on 25 August 2011 and sentenced to 3 years ’ imprisonment. As a result of this the Secretary of State notified Mr Sufi of his liability to deportation on 13 November 2012. Mr Sufi ’ s case currently remains under consideration, although he has challenged the lawfulness of his renewed liability to deportation via Judicial Review. Any further consideration of deportation action will include the Secretary of State considering whether the Article 3 risk determined by the European Court still remains. As set out above, the Secretary of State would not seek to deport Mr Sufi if consideration concluded that the Article 3 risk remains, but would grant further periods of Discretionary Leave. If consideration concluded that the situation in Somalia had changed since the promulgation of the Court ’ s judgment and the Article 3 risk no longer exists, Mr Sufi would be granted an in-country right of appeal against that decision.

- Furthermore, the Government is granting a period of six months ’ Discretionary Leave to remain in the United Kingdom to Mr Elmi . This has been delayed by the lack of suitable photographs for a Biometric Residence Permit, but is now progressing. Removal action would not be taken against him without consideration by the Secretary of State of whether the Article 3 risk remains. As set out above, if consideration concluded that the situation in Somalia had changed since the promulgation of the Court ’ s judgment and the Article 3 risk no longer existed, Mr Elmi would also be granted an in-country right of appeal against that decision.

General Measures

4. General measures:

- The case of Sufi and Elmi has been followed in subsequent cases of proposed removal to Somalia.

- The subsequent domestic country guidance case of AMM ( http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKUT/IAC/2011/00445_ukut_iac_2011_amm_ors_somalia_cg.html&query=amm+and+somalia&method=boolean ), decided by the Upper Tribunal on 28 November 2011 took account of the judgment in Sufi and Elmi .

- Both cases have been set out in the Operational Guidance Note (OGN) on Somalia published on 15 December 2011. Operational Guidance Notes provide asylum caseworkers and other decision makers with guidance on handling the main categories of claim from the country concerned. This means these cases will be followed in determining future cases of proposed removal to Somalia, as long as the factual situation there remains largely unchanged.

5. Publication:

- The judgment has been published in :

- http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/ECHR/2011/1045.html&query=sufi+and+elmi&method=boolean

- The case can also be found in the All England Reports: Sufi and another v United Kingdom [2011] All ER (D) 234 (Jun)

6. Dissemination:

The judgment has been disseminated to asylum case workers in Operational Guidance Notes, as above. OGNs are published on the UK Border Agency website. The Somalia OGN can be found at:

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/countryspecificasylumpolicyogns/somaliaogn?view=Binary

7. State of execution of judgment:

- The Government considers that all necessary measures have been taken and that the case should be closed.