Communicated on 14 April 2014

FIFTH SECTION

Application no. 4601/14 R.H . against Sweden lodged on 15 January 2014

STATEMENT OF FACTS

The applicant, R.H. , is a Somali national, who was born in 1988 and is currently in Sweden. She is represented before the Court by Ms V. Nyström , a lawyer practising in Norrköping .

A. The circumstances of the case

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

I n D ecember 2011 the applicant applied for asylum and a residence permit in Sweden. Before the Migration Board ( Migrationsverket ) she claimed that she had arrived in Sweden in 2007 from the Netherlands and had remained illegally in Sweden since then. She had been afraid to contact the Swedish authorities since she did not want to be returned to the Netherlands since they would send her to Italy where she had no housing or opportunity to support herself. She liked being in Sweden and had cousins who had residence permits.

The Migration Board verified the applicant ’ s fingerprints in the EURODAC database and found that she first had applied for asylum in Italy under another name and, in December 2006, she had applied for asylum in the Netherlands, under yet another name and a different date of birth. Upon request by the Swedish authorities, the Netherlands refused to take the applicant back since she had first entered Italy. Upon request to the Italian authorities, they did not reply, which constituted a tacit agreement to receiv e the applicant. Consequently, i n April 2012, the Migration Board dismissed the application and decided to transfer the applicant to Italy in accordance with the Dublin regulation.

However, the decision became time-barred before the transfer could be executed and therefore the applicant again applied for asylum an d a residence permit in Sweden i n November 2012. Before the Migration Board the applicant essentially submitted the following. In November 2004 her family had forced her to marry an older man against her will even though she had a relationship with another man, X, who had not been accepted by her family. She had first met X in school and they had kept their relationship secret. A few days after she had married, her relationship with X had become known when she had attempted to escape with him. They had been detected by her uncles when they had been sitting on the loading platform of a truck. Both she and X had been beaten and thrown out of the truck. As a result she had injured her hips and had been hospitalised for a few months. Thereafter she had lived at home until August 2005 when her father had considered that her health condition permitted her to move in with her husband. She had then contacted X and they had fled together. They had travelled by car to the Ethiopian border, then to Sudan and finally to Libya in order to take a boat to Italy. However, the boat had sunk and X had died. While in Sweden, she had learned that her parents had died . She claimed that the threat against her remained from her uncles and had likely increased after her father ’ s death. If returned, she would have to return to the forced marriage or be sentenced to death for fleeing the marriage and the country. Moreover, she lacked a male support network in her home country and therefore risked being subjected to sexual violence. She also invoked particularly distressing circumstances in her case due to the difficult situation for women without a male support network in Somalia, including social stigmatization and violence. Lastly, she invoked her hip injury and the general severe living condition and insufficient health care in the country.

On 8 March 2013, the Migration Board rejected the application. At the outset it found that the applicant had failed to substantiate her identity, noting in particular that she previously had applied for asylum in the Netherlands and Italy under different identities. However, the Board found it plausible that the applicant originated from Mogadishu. Noting that the applicant had remained illegally in Sweden from 2007 until 2011 before applying for asylum, the Board questioned whether she had felt a real need for protection. Turning to the applicant ’ s asylum story, the Board considered that it was marred with credibility issues. For example, she had given three different identities to the European authorities. Moreover, in her initial asylum application in 2011, she had stated that she was unmarried. Only during the asylum investigation had she claimed that she had married in Somalia in November 2004. The Board found that the applicant had failed to provide a sufficient explanation for this, particularly given that this was a crucial part of the asylum story. Furthermore, when she first had applied for asylum, she had only invoked the conflict in the country as ground for her application and she had stated that she could not remember how she had got the hip injury since she had been so young at the time. She had also initially claimed to have lived with a female friend in Mogadishu whereas she later had said that she had lived with her parents and siblings.

In conclusion, the Board found that the applicant had failed to make plausible that she had been subjected to any ill-treatment by her relatives in her home country and consequently had failed to show that she would lack a male support network there. It noted that, according to the applicant, her brother and uncles still lived in Mogadishu. Further, the Board found that it had not transpired that the applicant had lived in a refugee camp before leaving the country or that she would risk doing so upon return. In this respect, the general situation in Mogadishu was not so severe that the applicant could not return, having regard to the finding that she had a male network there to protect her. Lastly, it found no distressing circumstances in the case.

The applicant appealed to the Migration Court ( Migrationsdomstolen ), maintaining her claims and adding inter alia the following. The security situation in Mogadishu was still very unstable. In addition, women ’ s situation in the country was extremely severe. Since her situation in Italy had been difficult, it was understandable that she had decided to apply for asylum under another identity in the Netherlands, to avoid being sent back. This had also been the reason why she had decided to stay illegally in Sweden. Moreover, the Migration Board had misunderstood her. She had meant that she lived with a female friend in Sweden. In Somalia, she had lived with her family. Furthermore, in her view, she was not married since it had not been her choice. She submitted an X-ray image of her pelvis prosthesis to the court.

On 4 June 2013, the Migration Court rejected the appeal. It agreed with the Migration Board ’ s reasoning and findings. Moreover, the court considered that the submitted x-ray image was insufficient to substantiate that the applicant had been subjected to ill-treatment in her home country. As concerned the asylum story, the court also found that it contained serious credibility issues. Besides having given different identities and remained illegally in Sweden for four years, it noted that the applicant had also given conflicting information concerning when she had been forced to marry. In the asylum investigation, the applicant had stated that this had taken place in 2004. However, in one of her submissions to the Migration Board, she had claimed that her father and uncles had decided this in 2010. Since the applicant was not credible, the court did not believe that she did not have a male network in Somalia. Consequently, she was not in need of international protection.

The applicant made a further appeal to the Migration Court of Appeal ( Migrationsöverdomstolen ) which, on 15 July 2013, refused leave to appeal.

B. Relevant information on Somalia

In January 2014 the United Nations High Commissioner for Refugees (UNHCR) issued “ International Protection Considerations with Regard to people fleeing Southern and Central Somalia ” (HCR/PC/SOM/14/01). It considers inter alia that women and girls are a potential risk group which may be in need of international protection. Among other things, UNHCR further notes:

“Mogadishu has been nominally under the control of government forces, supported by AMISOM [the African Union Mission in Somalia], since August 2011. While the security situation in Mogadishu has improved since then, with a reduction of open conflict and signs of a resumption of economic activity in the city, Al- Shabaab retains the ability to stage lethal attacks even in the most heavily guarded parts of the city, with civilians reportedly bearing the brunt of its attacks. The SFG [the Somali Federal Government] is reported to be failing to provide much of its population with basic security. Thus the reality on the ground, as reported by observers, remains that civilians are injured and killed every week in targeted attacks by gunmen, or attacks by IEDs and grenades.

[...] Even though there was less outright fighting in Mogadishu in 2013 compared to previous years, the toll of injured and dead civilians from grenade attacks and bombings reportedly went up in 2013. Observers consider that Al- Shabaab strikes have evolved, from the laying of roadside bombs intended to hit vehicles of passing government officials and AMISOM convoys, to ramming vehicles laden with explosives into security gates of buildings housing government institutions or international organizations, before gunmen with explosives strapped to their bodies storm the premises. [...]

Further, a reported lack of authority, discipline and control of government forces and allied armed groups means that government forces often fail to provide protection or security for civilians and are themselves a source of insecurity. Security agencies, such as the police and intelligence services, are, according to reports, frequently infiltrated by common criminal, radical, or insurgent elements. [...]

For Somalis in Mogadishu, it is very difficult to survive without a support network, and newcomers to the city, particularly when they do not belong to the clans or nuclear families established in the district in question, or when they originate from an area formerly or presently controlled by an insurgent group, face a precarious existence in the capital. Somalis from the diaspora who have returned to Mogadishu in the course of 2013 are reported to belong to the more affluent sectors of society, with resources and economic and political connections. Many are reported to have a residence status abroad to fall back on in case of need. For some of the Somali returnees from Kenya, the main motivation for returning to Somalia in 2013 was fear of more reprisal attacks against them in Kenya and an overall sense of insecurity in Kenya. This was at a time when there was more optimism than before about Somalia as Al- Shabaab had been pushed out of Mogadishu and other towns in Southern and Central Somalia. Due in part to the return of wealthy Somalis from the diaspora, rents in Mogadishu have reached an all-time high, as a result of which some persons are being forced to move to overcrowded IDP camps because they cannot afford the new prices quoted by landlords.”

The Swedish Migration Board carried out a fact finding mission to Nairobi, Kenya, in October 2013 with the aim to update information about the situation in South/Central Somalia. In its report “ The S ecurity Situation in South and Central Somalia. Report on the fact finding mission to Nairobi, Kenya, in October 2013” [ Säkerhetssituationen i södra och central Somalia. Rapport från utredningsresa till Nairobi, Kenya, i oktober 2013] , dated 20 January 2014, it noted inter alia the following :

“The security situation is affected by the good supply of weapons, religious extremists and persons who could be labeled warlords but could also be clan leaders in combination with mafia-style organized criminality. They also have their own militias who rape, extort and set up illegal check points. In areas with a strong presence of AMISOM or the Ethiopian army, the situation regarding human rights is considerably better than in areas controlled by Al Shabaab . Although the SNAF [Somali National Armed Forces] is less arbitrary in their behavior than Al Shabaab it is still uncertain if the authorities such as the police and the courts are at all functioning. The forces are not paid in time, or not at all, and those who are in the forces are not always from the same clan as the locals. It can be questioned to what extent the SNAF is multi-clan. The discipline is bad and the SNAF-soldiers rob and rape civilians and are sometimes involved in shoot-outs among themselves. A rumour that you cooperate with Al Shabaab could be enough to be killed by someone on the government ’ s side of the conflict. [The Migration Board] was told examples from Mogadishu where the chain of command from the government to the police as well as within the police did not work, neither did the clan system. Solving these issues can be done with the help of influential people ’ s own militias. Other militias allied with the SFG in one way or another, are clan based. Those engaged in these militias regard this first and foremost as a job, and children, most over 15 years of age, are in the ranks. Recruitments to all militias has gone down during 2013.”

Following the same fact finding mission, the Migration Board issued the report “ Women in Somalia. Report on the fact finding mission to Nairobi, Kenya, in October 2013” [ Kvinnor i Somalia. Rapport från utredningsresa till Nairobi, Kenya, i oktober 2013], dated 20 January 2014, which states inter alia the following :

“It is reported that women are abused by different military forces, in this context meaning the SNAF, AMISOM and different clan militias. SNAF soldiers are responsible for many abuses but even AMISOM soldiers are a threat to women. It is reported from Mogadishu that AMISOM soldiers abuse women sexually. The woman is called into the base under the pretext she is going to get a job, e.g. as a cleaner, but are instead assigned to a specific man for sexual services. A woman who becomes pregnant is usually thrown out by her husband and will lose her older children to her husband. Her clan will in most cases not defend her in such a situation. There are women ’ s shelters in Mogadishu and Afgooye where a woman can stay for six months and where there is access to medical and psychosocial support. They have access to skills development with the aim that the women are able to support themselves. The women live community based in order to get a network that can provide some support and are if possible placed where there clan, but not their sub-clan, lives.”

COMPLAINTS

Invoking Articles 2, 3 and 4 of the Convention, the applicant complains that, if the expulsion order against her were enforced, she would face a real risk of either being killed by her uncles because she refused to agree to a forced marriage before fleeing Somalia or being forced to marry someone against her will upon return, which would equal slavery. The applicant also alleges that the situation in Somalia is very severe for women, in particularly without a male network, and that she would have to live alone in a refugee camp which would expose her to numerous dangers.

QUESTION TO THE PARTIES

In the light of the applicant ’ s claims, the documents which have been submitted and the recent country information on Somalia, would she face a real risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order were enforced, having special regard to the fact that she is a single woman being sent back to Mogadishu?