THIRD SECTION

Application no . 18135/13 Ibrahim HERSI DIRYE FAARAH against the Netherlands lodged on 12 March 2013

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Ibrahim Hersi Dirye Faarah, is a Somali national, who was born in 1993 and lives in Delfzijl. He is represented before the Court by Mr M. Berg, a lawyer practising in Amsterdam .

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

The applicant first applied for asylum in the Netherlands in October 2009 (when he was almost 16 years old), submitting that earlier that year he had been apprehended by al-Shabaab in his hometown of Marka in S outh Somalia when he was playing football and had worn shorts that were considered too short and had hai r that was considered too long.

He had been taken to a police station after he had refused to give permission to one of the al-Shabaab men to cut his hair. At the police station – where he had been held for two weeks – he had cooperated with al-Shabaab: he had helped to guard the police station and had joined them on patrols through the city during prayer times in order to ‘ p ersuade ’ people to go and pray.

Because he had gained their trust in this way, al-Shabaab had agreed that he seek his parents ’ permission to join them – even though they would have forced him to join them even without that permission. After two weeks he had been released and he had told his mother about what had happened. His mother had been against him joining al-Shabaab and said the matter would have to be discussed with his father, who was working in Mogadishu . Al ‑ Shabaab had then given him permission to leave the city and go to Mogadishu to talk to his father. Once there, his father had told him he would organise his departure from Somalia . He had returned to Marka the following day, and a little while later had once more obtained permission from al-Shabaab to leave the city and talk to his father one more time. He had gone to Mogadishu again, where his father had organised a passpor t and a “travel agent” for him.

Th e “travel agent” had accompanied him to Nairobi , Kenya , and subsequently to Amsterdam . The applicant had only been allowed to hold the passport when going through controls; he had thus given the passport to the “ travel agent ” once they had arrived at Amsterdam airport. The “ travel agent ” had subsequently disappeared.

Although it was not disputed that the applicant indeed hailed from Marka in South Somalia, his asylum application was refused by the Deputy Minister of Justice ( staatssecretaris van Justitie ) on 28 October 2009 because he did not have any travel or identity documents and because his account was deemed to lack credibility: according to a country report on Somalia issued by the Dutch Ministry of Foreign Affairs ( amtsbericht ), al ‑ Shabaab ’ s manners of recruitment did not correspond to the applicant ’ s account.

T he applicant ’ s appeal against this decision was upheld by the Regional Court ( rechtbank ) of The Hague sitting in Amsterdam on 3 November 2010. However , the further appeal lodged with the Administrative Jurisdiction Division (“the Division”) of the Council of State by the Minister for Immigration, Integration and Asylum Policy ( minister voor Immigratie, Integratie en Asiel ; the successor to the Deputy Minister) was successful, the Division not agreeing with the Regional Court that the situation in South/Central Somalia was such that it constituted a situation within the meaning of Article 15c of Council 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 applicant lodged a second asylum application in January 2012, submitting inter alia that his mother and brother had fled Marka. This brother was now the family ’ s only son and al-Shabaab demanded that one son of each family join them.

This request was also refused, the Minister considering in a decision of 17 January 2012 that the applicant ’ s account was still not considered credible and noting that he had not made a plausible case for believing that he would be unable to “play the game” and live under al- Shabaab ’ s rules.

The applicant ’ s appeal against this decision was rejected by the Regional Court of The Hague sitting in Den Bosch on 9 February 2012 , which court considered inter alia that it was not in dispute that prior to his departure from Somalia, the applicant had lived in an area controlled by al-Shabaab for at least one year. Therefore, so the court held, the Minister could reasonably have found that the applicant had sufficient experience in fending for himself under al-Shabaab.

The applicant ’ s further appeal was rejected by the Division on summary grounds for not raising any points of law on 15 February 2013.

COMPLAINT

The applicant complains under Article 3 of the Convention that there are substantial grounds for believing that he will be subjected to treatment prohibited by that provision if he were expelled to Somalia .

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, could the applicant safely reach his hometown of Marka without being at real risk of treatment in breach of Article 3? Moreover, can it be said that he has recent experience of living in Somalia and can therefore avoid coming to the attention of al-Shabaab (see Sufi and Elmi , cited above, § 2 95 )?

3. Alternatively, is there an internal flight alternative elsewhere in southern and central Somalia that the applicant could travel to, to which he could gain admittance and where he could settle without being exposed to a real risk of Article 3 ill-treatment (see Sufi and Elmi , cited above, § 294) ?