ECtHR - R.H. v. Sweden, No. 4601/14, 10 September 2015

Facts:

Procedural Background

On 27 December 2011 the applicant applied for asylum and a residence permit in Sweden. During the asylum interview, the Swedish Migration Board (Board) found that the applicant had previously applied for asylum—first in Italy and then in the Netherlands. As such, the Board commenced the applicant’s transfer to Italy in accordance with the Dublin Regulation, but the transfer decision became time-barred before the applicant could be transferred.

On 30 November 2012, the applicant initiated a subsequent asylum petition and residence permit in Sweden. In this asylum petition, the applicant argued that she faced persecution in Mogadishu, Somalia for: 1) having fled a forced marriage and risking death as a consequence; 2) risking sexual assault for lacking a male support network; 3) becoming a social outcast as a single woman; and 4) the general dire humanitarian situation in Somalia. The applicant contended that her removal would be a violation of Article 3 of the European Convention on Human Rights (Convention).

Factual Allegations for Asylum Petition

To support her legal arguments, the applicant alleged the following. In 2004, her family forced her to marry an older man against her will. At the time, the applicant was in a secret relationship with a boyfriend from school. Both the boyfriend and applicant unsuccessfully tried to escape Mogadishu after being caught and beaten by her uncles. As a result, the applicant was hospitalised due to hip injuries. Trying again, the applicant and boyfriend fled to Ethiopia, Sudan, and then to Libya in order to take a boat to Italy. However, the boat sank en route to Italy and the boyfriend died.

Asylum Decision

Although the Board found it plausible that the applicant came from Mogadishu, it rejected the applicant’s asylum application and entered a deportation order to Somalia because the applicant could not substantiate her identity, noting that the applicant had applied for asylum in the Netherlands and Italy under different identities. Moreover, the applicant’s need for protection was questioned since the applicant arrived in Sweden in 2007 but did not apply for asylum until 2011. Lastly, the applicant’s credibility was also questioned because: she originally claimed that she was unmarried but was found to be married during a later stage in the asylum process; her sole form of persecution in her initial asylum application was the dire humanitarian situation claim; she could not remember how she sustained her hip injury in her subsequent application; and she originally claimed that she lived with a friend in Mogadishu but later stated that she lived with her parents.

Moreover, the Board concluded that it was not plausible that the applicant had been subjected to any ill-treatment by her relatives or that she lacked a male support network. In response to the claim that that general situation of Mogadishu was dire, the Board relied on information from a fact-finding mission to Mogadishu in 2012 and concluded that the situation in the city was not severe and that the applicant would be able to return there.

Appeal

On 4 June 2013, the Migration Court agreed with the Board’s findings and rejected the applicant’s appeal. In addition to the Board’s concern with the applicant’s credibility, the Migration Court found that the applicant originally claimed that she was forced to marry in 2014 but later changed the date to 2010.

On 15 July 2013, the Migration Court of Appeal refused the leave to appeal.   

On 7 September 2013, the Board rejected the applicant’s request that the Board re-examine her case, finding that the applicant did not present any new circumstances justifying reconsideration.

Factual Allegations before the European Court of Human Rights (ECtHR)

The applicant submitted an application before the European Court of Human Rights (Court) alleging that her removal from Sweden would expose her to treatment in violation of Article 3 of the Convention. To support her argument, the applicant alleged that she would face a real risk of either being killed by her uncles or being forced to marry. The applicant also reiterated that the general situation in Somalia would expose her to serious danger as a woman who lacked a male network. Moreover, the applicant also challenged the findings by the Board and the Migration Court that she was not credible. Lastly, the applicant argued that the ECtHR’s findings in K.A.B. v. Sweden should be distinguished because unlike the applicant in K.A.B. who was a man, as a woman the applicant would face gender-based abuse if returned to Somalia because the violence against women and general conditions in Somalia had deteriorated since the K.A.B. judgment.

Decision & reasoning:

Majority Opinion

The Court starts off by explaining the evolution of its case law in regards to the general situation in Mogadishu. In 2011 the Court found that the conditions in Mogadishu were “of such a level of intensity that anyone in the city would be at real risk of treatment to Article 3 of the Convention” in Sufi and Elmi v. the United Kingdom. However, in 2013 the Court changed its position in K.A.B. v. Sweden by finding that “although the human rights and security situation in the city was serious and fragile and in many ways unpredictable, it was not of such a nature as to place everyone present there at a real risk of treatment contrary to Article 3.”

In assessing whether the conditions in Mogadishu had worsened since K.A.B. v. Sweden, the Court relied on objective reports by non-governmental organisations to conclude that while “the general security situation in Mogadishu remains serious and fragile . . . . [t]he available sources do not, however, indicate that the situation has deteriorated.” Specifically, the Court noted that al-Shabaab — the militant group that gave rise to the danger in Mogadishu — had withdrawn from Mogadishu and “there was no real prospect of a re-established presence within the city.” While in 2011, the danger in Mogadishu was connected to “indiscriminate bombardments,” the Court believed that the al-Shabaab attacks were now carefully selected against politicians, police, and other government officials and therefore predictable.

Importantly, although the Court acknowledged that the applicant in the present case faces a different threat as a woman and that several of the reports described the serious and widespread sexual and gender-based violence in the country, the Court agreed with Sweden’s Board and Migration Court in that the Court too had concerns about the applicant’s credibility. Although the Court gave less weight to the fact that the applicant had used slightly different names in previous asylum applications filed in Italy and the Netherlands, the Court was concerned that the applicant lived in Sweden for four years before filing an asylum petition. The Court noted that “[i]f the threats against her were real, it was in her own interest to present them to the Migration Board as soon as possible in order to obtain adequate protection.” Moreover, the Court also questioned why the applicant’s primary claim that she faces persecution based on her gender was not raised until the subsequent asylum petition filed in Sweden. As such, the Court held that “while not overlooking the difficult situation of women in Somalia, including Mogadishu, the Court cannot find, in this particular case, that the applicant would face a real risk of treatment contrary to Article 3 of the Convention.”

Outcome:

The Court holds by five votes to two, that the deportation of the applicant to Mogadishu in Somalia does not give rise to a violation of Article 3 of the Convention.

Observations/comments:

Dissenting Opinion

Two dissenting judges disagreed that the deportation of the applicant to Mogadishu would not give rise to a violation of Article 3. The judges believed that the Court had wrongfully given more weight to the applicant’s minor discrepancies while downplaying the general situation in Mogadishu. In the present case, the judges believed that the applicant faced a real danger as a single woman being forced to return to Mogadishu. Importantly, the dissenting judges were concerned with the inconsistencies between the decision by the Court in Tarakhel v. Switzerland, in which the reception facilities and accommodation conditions in Italy attained the threshold of severity to come within the scope of an Article 3 violation, and the Court’s decision in the present case “which places [the applicant’s] physical integrity and her life in manifest danger.” 

This case summary was written by Krsna Avila, J.D. Cornell Law School.

Other sources:

Rule 28 of the Rules of Court

Rule 29 of the Rules of Court

Rule 39 of the Rules of Court

Rule 77(2) of the Rules of Court

Rule 77(3) of the Rules of Court

Update on Security and Human Rights Issues in South-Central Somalia, Including Mogadishu (published in January 2013)

Security and Protection in Mogadishu and South-Central Somalia (May 2013)

Update on Security and Protection Issues in Mogadishu and South-Central Somalia (March 2014)

Human Rights Watch 2014 World Report

The Security Situation in South and Central Somalia (Säkerhetssituationen i södra och centrala Somalia), 20 January 2014 , October 2014, and 29 April 2015

Women in Somalia (Kvinnor i Somalia), 20 January 2014

Somalia: Women Fearing Gender-Based Harm/Violence, February 2015

International Protection Considerations with Regard to People Fleeing Southern and Central Somalia, 17 January 2014 (UNHCR)

Humanitarian Bulletin Somalia, 17 October 2014 (OCHA)