No removal of foreign criminals to failed states

30 June 2011 by

Sufi and Elmi v United Kingdom – 8319/07 [2011] ECHR 1045 (28 June 2011) – Read judgment

Somalia has been without a functioning government since 1991, riven, since then, by violence between rival clans and sub-clans and largely at the mercy of extreme Islamist groups with one aim in common: sabotaging any efforts by the international community to install a transitional government.

The tragedy is that the combination of resource scarcity, natural disasters and rapacious human activity are so enmeshed, particularly in Africa, that the separation of state-sponsored violence (which does involve humanitarian responsibilities under the European Convention) and harm emanating from naturally occurring disaster (which does not) no longer makes any sense. The kind of conditions that give rise to treatment prohibited under Article 3 of the Convention can be said to prevail in many parts of the continent. How are signatory states to cope?

This question is at the core of the case of Sufi and Elmi v United Kingdom, in which the Strasbourg Court has ruled that the state of chaos prevailing in Somalia is so dire that repatriation there would amount to a breach of the prohibition on torture and inhuman treatment under Article 3.

Two Somali nationals, currently held in a detention centre, challenged the deportation decision of the Home Secretary, following convictions for a number of serious criminal offences, including burglary and threats to kill in the case of one, and robbery and supplying class A drugs in respect of the other. They complained that their removal to Somalia would place their lives at risk and/or expose them to a real risk of ill-treatment. They also relied on Article 8 (right to respect for family and private life).

The case

The government relied on two arguments. One was that it would be possible for the applicants to escape the worst of the conflict in the destination country. It is a well-established principle that persons will generally not be in need of asylum or subsidiary protection if they can obtain protection by moving elsewhere in their own country. If the applicant could live a relatively normal life in the place of relocation, judged by the standards which prevailed in his country of nationality generally, and if he could reach the less hostile part without undue hardship or undue difficulty, it would not be unreasonable to expect him to move there.

The second argument related to the Somalian situation itself.  In 2008 the Asylum and Immigration Tribunal established that, if a person was from one of the majority clans, they would in general be able to rely on that clan for support and assistance, including at times of displacement. They could not therefore rely on Articles 2 or 3 to escape deportation.

The applicants also sought to rely on article 15(c) of the EU Qualification Directive, which obliges member states not to return people to a destination state which presents “a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”

This Directive was passed to ensure that EU Member States apply common criteria for the identification of persons genuinely in need of international protection. The applicants contended that if their situation did not satisfy the severity test for Article 3, the Directive set a lower threshold and therefore they should be able to call on its protection. The government argued that a higher standard of protection set for EU member states could not be absorbed into Article 3 so as to apply to the broader membership of the Council of Europe, particularly as the states’ obligation to accept people under article 1(c) was mitigated by a number of exclusions set out in article 17 which were based on the conduct of the individual. The Strasbourg Court did not rule on a matter which was solely for the interpretation of the European Court of Justice. However it did observe that

the threshold set by both provisions may, in exceptional circumstances, be attained in consequence of a situation of general violence of such intensity that any person being returned to the region in question would be at risk simply on account of their presence there

The judgment

The complaints under Article 3 were upheld, taken together with Articles 2 and 8. The prohibition of torture and of inhuman or degrading treatment or punishment was absolute, irrespective of the victims’ conduct. Consequently, the applicants’ behaviour, however undesirable or dangerous, could not be taken into account. The Court found that the level of violence in Mogadishu was of sufficient intensity to pose a real risk of treatment in breach of Article 3 to anyone in the capital. It did not exclude the possibility that a well-connected individual might be able to obtain protection in Mogadishu, but it considered that only connections at the highest level would be able to assure such protection, and that anyone who had not been in Somalia for some time was unlikely to have such connections.

With regard to the UK’s arguments that it would be possible for the applicants to seek safety by internal relocation, the Court did not consider this was an avenue open to them. A returnee “with no recent experience of living in Somalia” would be at real risk of ill-treatment if his home area was in – or if he was required to travel through – an area controlled by al- Shabaab, as he would not be familiar with the strict Islamic codes imposed there and could therefore be subjected to punishments such as beating, flogging, stoning or amputation. As the first applicant’s only family connections were in an area under the control of al- Shabaab, a militant Islamist group with close connections to Al-Qaeda, the Court considered that, if returned, he would probably end up in an Internally Displaced Persons (IDP) or refugee camp. Refugees in these camps in Northern Kenya were living in severely overcrowded conditions with limited access to water and shelter, vulnerable to theft, sexual violence, and exploitation by the Kenyan authorities. The second applicant’s return to Mogadishu would also be likely to expose him to a similar fate as country reports indicated that the city was riven with indiscriminate violence from armed gangs conducting mortar attacks and firing indiscriminately in densely populated areas.

Consequently, the Court considered that their removal would violate their rights under Article 3.


The history of these claims as they wound their way through the immigration appeals system from the original deportation orders issued in 2006 is a good illustration of the pressure placed on the system, even after the statutory review procedure for asylum and immigration appeals was put in place to reduce the burgeoning industry of judicial review in this context (see our recent post on this issue). The value of a successful appeal in such cases is so high – permission to live in a safe first world country – that no amount of effort taken to exhaust the route to that prize is too great.

Particularly for Somalians, but not exclusively for them.  Throughout the continent internal armed conflict continues, despite all the efforts of the international community, with only minor variations in the intensity of the violence.  Water wars and other conflicts over scarce resources increase the unpredictability of the situation. Government in some of these regions only survives if it is brutally autocratic, like Robert Mugabe’s regime in Zimbabwe. Sudan has been a failed state for quarter of a century of civil war and there is no guarantee that the new seceded South Sudan will be immune from the same fate.

It could be said of many of these regions that anyone living there is facing a daily risk of persecution, serious harm or treatment proscribed by Article 3 of the Convention. But only those who by a combination of determination, luck and targeted people-smuggling are fortunate enough to make it to Europe, however briefly, are able to rely on this provision. There was a time when the pragmatic view prevailed that mere instability in the destination country was insufficient to trigger the protection of Article 3 (Vilvarajah, 1991) . Now N.A. v. the United Kingdom (2008) has changed that and all the potential deportee has to show is that the general situation of violence in the country of destination is of a sufficient level of intensity to create a real risk that any removal to that country would violate Article 3 of the Convention.

To insist in such cases that the applicant show the existence of such special distinguishing features would render the protection offered by Article 3 illusory

It might be said that this insistence was one requirement that rendered Article 3 palatable and realistic in a world of proliferating civil wars and insurgency chaos. Another limiting requirement, what might conveniently be called the “human agency” test for treatment prohibited by Article 3, no longer makes sense in these circumstances, as the Court itself acknowledges:

If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the State’s lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N. v. the United Kingdom [i.e. no application of Article 3] may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct and indirect actions of the parties to the conflict.

The problem is that the test of future harm rests on a false basis. Whether it emanates from the intentional acts or omission of public authorities or non-State bodies or from some so-called “naturally-occuring ” phenomenon is not the point. The point is whether the receiving country is beset by problems so dire that any returnee would be at a real risk of Article 3 ill-treatment solely because of his presence there. The answer to this test for many parts of the world will almost always be affirmative.  But this only illuminates what an anachronism this test has become. Hoping that only a few will find the means or transport to insist on their right not to be returned to their failing states of origin is not good law, economics or politics. It is not, in the most basic sense of the word, just. Nor, as we have seen, is it an answer to tweak the appeals system, or render the migration machine  slow, cumbersome or humiliating. This does not put people off. The costs of losing are too great, the value of staying, inestimable. As Matthew Parris says, we consequently face ” potential demand from an imponderable number”.

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