THIRD SECTION

Application no . 17848/13 Ismhaan MAHAMUUD against the Netherlands lodged on 12 March 2013

STATEMENT OF FACTS

The applicant, Ms Ismhaan Mahamuud, is a Somali national, who was born in 1992 and lives in Venlo. She is represented before the Court by Mr J.J. Bronsveld, a lawyer practising in Bergen o p Zoom.

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

The applicant applied for asylum in the Netherlands on 4 August 2009, submitting the following. She hail ed from Mogadishu where she had experienced problems with a member of al-Shabaab, one Gaalid, who wanted to marry her. The applicant ’ s father did not want to give his daughter in marriage to this Gaalid and for this reason the applicant had moved in with her aunt in a different part of Mogadishu . Her father ’ s refusal had cost him his life, after a bomb was thrown onto his house. Gaalid had also made enquiries into the applicant ’ s whereabouts with her mother – who was living separately from the applicant ’ s father. The applicant had managed to escape Gaalid twice. On the last occasion the applicant had run away and gone to her aunt ’ s house. Shortly afterwards the house had been bombed and two of the applicant ’ s cousins had been killed. The applicant had been injured and received treatment in a pharmacy. At the instigation of her aunt, the applicant ’ s mother had sold the father ’ s house in order to allow the applicant to leave Somalia , which she did in March 2009.

The applicant ’ s asylum request was rejected by the Minister for Immigration, Integration and Asylum Policy ( minister voor Immigratie, Integratie en Asiel ) on 16 March 2011. The applicant ’ s failure to submit documents relating to her identity, nationality and itinerary was held to affect the sincerity of his account and to detract from its credibility. The Minister noted that when the applicant had first been apprehended by the Royal Dutch Constabulary in a train coming from Paris , she had declared that she belonged to the Habr Gidir clan. In her first interview with the immigration authorities she had however stated that she belonged to the Biyomaal, which, according to the applicant, was a sub-clan of the Hawiye. The applicant had further stated that the Biyomaal are unarmed, unable to protect themselves and that she belonged to a minority group. However, according to the Minister, the Biyomaal are a subclan of the Dir, not of the Hawiye – but both these clans were in any event major clans. The fact that the applicant had made incorrect and/or contradictory statements about something as essential to the Somali context as clan lineage seriously detracted from the plausibility of the applicant ’ s statements. The Minister also did not believe that the applicant was a single woman as she had stated that she used to live with her mother and stepfather in Somalia , and that she had contacts on a daily basis with her father and other family members.

The Minister further considered that the applicant ’ s claim that she was being forced to marry a member of al-Shabaab had not been sufficiently substantiated. She had made contradictory statements about the alleged death of her father, saying first that her father ’ s house had been targeted by a mortar rocket, and subsequently that the house had been bombed, and also about where she had been living until she left Somalia . The applicant had furthermore not made a plausible case for believing that there was a connection between Gaalid and the other alleged events. It had therefore in any event not been made plausible that the applicant ’ s father had been killed by a member of al-Shabaab.

While he acknowledged that the security situation in Mogadishu fell within the scope of Article 15 (c) of Cou ncil Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”) , the Minister considered that since the applicant did not belong to a non-Somali minority and was not a single woman or a minor, the policy in force provided that a relocation alternative elsewhere in southern or central Somalia could be held against her. As the applicant had not put forward any facts or circumstances relating to her personally on the basis of which it could not be expected that she reside in an area outside Mogadishu , the Minister considered that she could settle in such an area.

The applicant lodged an appeal against this decision with the Regional Court ( rechtbank ) of The Hague sitting in Den Bosch . In his statement of defence in the se proceedings the Deputy Minister set out that a person from Mogadishu would only be expected to relocate to other parts of southern and central Somalia if he had close family ties in the area to which he relocated, if that family was able to receive and support him, and if the person concerned was not required to settle or travel through an area controlled by al-Shabaab, unless he should be deemed capable of coping with life under al-Shabaab rules. It had appeared from the applicant ’ s statements that the aunt with whom she had resided previously was now living in Lafole, outside Mogadishu , whereas there was no reason to think that this aunt would not be able to receive and support the applicant. Moreover, the applicant could be accompanied to Lafole by her father, stepfather and/or adult stepbrothers. In addition, the applicant had previous experience of living under al-Shabaab rules and her alleged problems with members of this movement had been found to lack credibility.

The Regional Court rejected th e appeal on 24 January 2013 , finding that the Deputy Minister of Security and Justice ( staatssecretaris van Veiligheid en Justitie ; the successor to the Minister for Immigration, Integration and Asylum Policy ) could reasonably have come to the conclusions as set out in the impugned decision.

The applicant has lodged a further appeal to the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrecht van de Raad van State ) which is currently still pending. On 8 March 2013 the President of the Administrative Jurisdiction Division refused to issue an injunction to the effect that the applicant would not be expelled pending the further appeal proceedings.

COMPLAINTS

The applicant complains that her expulsion to Mogadishu would expose her to a real risk of being subjected to treatment in breach of Article 3 of the Convention, both because of her personal and of the general situation there.

The applicant also complains that the Netherlands authorities violated Article 1 of the Convention by refusing her request for asylum as a result of which she c an be expelled to Somalia .

Finally, invoking Article 2, the applicant claims that she has well-founded reasons for assuming that she will be killed upon her return.

QUESTIONS

1 . Is it the Government ’ s intention to expel the applicant to Mogadishu ? If so, for what reasons do the Government believe that the violence in Mogadishu is no longer of such a level of intensity that anyone in the city, except possibly those who are exceptionally well-connected to “powerful actors”, would be at real risk of treatment prohibited by Article 3 of the Convention (see Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07 , § 293, 28 June 2011)? Would the applicant personally be at risk of such treatment if expelled to Mogadishu?

2. In the view of the Government, is there an internal relocation alternative elsewhere in southern and central Somalia that the applicant could safely reach, to which she could gain admittance and where she could settle without being exposed to a real risk of Article 3 ill-treatment (see Sufi and Elmi , cited above, § 294)?