CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 janvier 2007

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THE NETHERLANDS     (Application no. 1948/04)       JUDGMENT     STRASBOURG     11 January 2007       FINAL     23/05/2007     This judgment will become final in the circumstances set out in Article   44   §   2 of the Convention. It may be subject to editorial revision. In the case of Salah Sheekh v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   B.M. Zupančič , President ,   Mr   J. Hedigan ,   Mr   C. Bîrsan ,   Mrs   A. Gyulumyan ,   Mr   E. Myjer ,   Mr   David Thór Björgvinsson ,   Mrs   I. Ziemele, judges , and Mr V. Berger , Section Registrar , Having deliberated in private on 12 December 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 1948/04) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Somali national, Mr Abdirizaq Salah Sheekh (“the   applicant”), on 15 January 2004. 2.     The applicant was represented by Mr Ph.J. Schüller, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. 3.     On 18 March 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided on 9 March 2006 to examine the merits of the application at the same time as its admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant submitted that he was born in 1986 and is currently living in Amsterdam. A.     Reasons for the applicant's request for asylum 5.     The applicant requested asylum in the Netherlands for the reasons set out below. 6.     He originally hailed from Mogadishu and belonged to the minority Ashraf population group. In 1991, due to the civil war, his family were forced to leave behind their belongings in Mogadishu and flee to the village of Tuulo Nuh, 25 km from Mogadishu, where they lived in primitive conditions. 7.     After their flight from Mogadishu, the family were robbed of their remaining possessions. Tuulo Nuh was controlled by the Abgal clan of the Hawiye clan-family. That clan's armed militia knew that the applicant and his family had no means of protection because they belonged to a minority, and for that reason the family were persecuted. Three other Ashraf families were living in Tuulo Nuh; they were treated in the same manner. 8.     Members of the militia would frequently come to the family home and threaten the applicant and his family. The first time this occurred was when the applicant was about seven years old: the militia threatened the applicant's father, saying that they would set the house on fire if he did not give them money. Whenever the applicant went out he would be harassed and beaten; sometimes when he went to fetch water, the bucket would be knocked over by members of the Abgal. The applicant's mother sold fruit and vegetables on the market. She was repeatedly robbed and ill-treated. Sometimes, when her daily takings had been stolen, the family had to go without food and drink. 9.     In 1995 the applicant's father was killed by members of the Abgal militia. One evening in December 1998, on one of the occasions when members of the militia came to the house, the family members were locked up and ill-treated – the applicant was hit with a belt and a rifle butt. His brother Ali had his arm broken. Then the militia members took the applicant's mother and sister as well as a female acquaintance outside with them. They left his mother, but took his sister and the acquaintance to a place outside the village where they raped them. They did not release them until the next morning. 10.     In May 2001 the applicant and one of his brothers were held by members of the militia, ill-treated and forced to unload a lorry from 10 a.m. until 5 p.m. 11.     In March/April 2002 the applicant's brother, who ran a small grocery shop, was shot and killed in his shop by Abgal militia members. The applicant heard the shots and when he went to look he saw the body of his brother lying on the floor while the militia members looted the shop. The militia knew his brother and saw him as easy prey because, being a member of a minority, he was unable to defend himself. 12.     About three months later, in June or July 2002, Abgal militia members came to the family home in a car, took the applicant's sister away, raped her and released her late the same night. Although the applicant was at home, he was powerless to intervene because he might have been killed in the process. It was not uncommon for militia members to rape girls. The majority of girls in the village belonged to the large clans and were therefore well protected. Of the families belonging to the Ashraf minority, the applicant's was the only one with a daughter, making her an easy target. 13.     The last time members of the militia came to the family home prior to the applicant's flight was in March 2003. Eight men came in a Jeep, carrying AK47 and M16 rifles. The applicant was at home with two younger brothers. He was threatened, beaten, punched and kicked. The militia searched the house looking for money. They left, saying that his mother should get money ready for them or the consequences would be dire. 14.     On several occasions the applicant's mother had requested the village wise men to ask the militia to stop persecuting the family, but to no avail. 15.     The family had been wanting to leave the country for a long time, but there was not enough money. Fleeing to another place in Somalia was not an option, as things might be even worse elsewhere. Finally, after lengthy negotiations conducted by the applicant's uncle with clan elders, his mother received compensation from the people who had moved into the family home in Mogadishu. This meant she had the financial means to pay for the applicant's escape to the Netherlands. B.     The applicant's journey to the Netherlands 16.     The applicant's flight from Somalia was arranged by his mother and his uncle. 17.     On 1 May 2003 he went from Tuulo Nuh to Mogadishu, where he stayed in his uncle's house for one week while his uncle established contact with a “travel agent” calling himself Frank. The applicant handed over a number of passport pictures to Frank, which the latter used to obtain a Somali passport in the applicant's name. Frank then put the applicant up in a house in Mogadishu for a day. There the applicant met a boy by the name of Abdulkadir who was also about to flee the country. The next day, the applicant, Abdulkadir and Frank flew from Mogadishu to Nairobi (Kenya) in an aeroplane used to transport qat (a plant grown in Kenya, Ethiopia and Yemen; the chewing of its leaves and twigs is popular among Somalis). In Nairobi they took a taxi to a hotel. Frank did not allow the applicant to continue the journey using the Somali passport, which he took back from him. After staying in Nairobi for three days, the applicant, Frank and Abdulkadir flew to Istanbul and from there to Amsterdam. On this leg of the journey the applicant used a Kenyan passport in the name of one Mahat Ahmed Hassan, born in 1977, as well as an identity card in the same name. Frank would give these documents to the applicant when they had to pass through passport controls, but would then take them back again. On arrival at Amsterdam Schiphol Airport on 12 May 2003, Frank told the applicant and Abdulkadir to wait for him as he had to go somewhere in the airport. Whilst they were waiting they were approached by police, whereupon they said that they wished to request asylum. C.     The asylum procedure in the Netherlands 18.     On his arrival, the applicant indicated that he wished to apply for asylum. He was refused entry into the Netherlands and deprived of his liberty. He was taken to the asylum application centre ( aanmeldcentrum , “AC”) at Schiphol to lodge his request for asylum ( verblijfsvergunning asiel voor bepaalde tijd ) on 13 May 2003. A first interview with an official of the Immigration and Naturalisation Department ( Immigratie- en Naturalisatiedienst ) took place the same day in order to establish the applicant's identity, nationality and travel route. He stated, inter alia , that he thought he had been born in 1986 because he knew there was a three-year difference between himself and his brother. 19.     A number of further questions concerning the applicant's age were put to him on 14 May 2003. He said that as a result of an illness he had lost his hair, and this explained why he did not have much hair. He did not know his exact date of birth and estimated that he was 17 years of age. He consented to undergo an examination to determine his age. 20.     The same day a lawyer acting on behalf of the applicant submitted a small number of corrections to the record drawn up of the first interview. Referring to a report from the National Ombudsman, the lawyer also objected to the method used to determine the applicant's age. He further requested that the applicant be granted, ex officio , a residence permit for stateless persons who, through no fault of their own, are unable to leave the Netherlands (the so-called “no-fault residence permit” – “ buiten-schuld vtv” ). 21.     On 19 May 2003 the examination to determine the applicant's age was conducted. According to the results of the examination, the applicant was at least 20. On this basis the applicant's theoretical date of birth was given as 1 January 1983. 22.     On 28 May 2003 the applicant was interviewed about the reasons for his request for asylum. During the interview he stated, inter alia , that his mother had told him that he had been born on 23 February 1986 and that he had been five years old at the start of the war in Somalia. He did not agree with the attribution of a different date of birth, as he trusted his mother more than the doctor who had carried out the examination to determine his age. 23.     Meanwhile, on 15 May 2003, the Minister of Immigration and Integration ( Minister voor Immigratie en Integratie – “the Minister”) had notified the Regional Court ( arrondissementsrechtbank ) of The Hague sitting in Haarlem of the measure imposed on the applicant depriving him of his liberty. According to section 94(1) of the Aliens Act 2000 ( Vreemdelingenwet 2000 ), the applicant was deemed to have appealed against the measure by means of this notification. On 2 June 2003 the Regional Court rejected the appeal. 24.     On 3 June 2003 the applicant was given a copy of the statement of the Minister's intention to refuse him asylum ( voornemen ). On 20   June   2003 a lawyer acting on behalf of the applicant submitted written comments ( zienswijze ) on this intention. 25.     By a decision of 25 June 2003 the Minister refused the applicant's asylum request. The fact that the applicant had failed to submit documents establishing his identity, nationality and travel route was held to cast doubt on the sincerity of his account and detract from its credibility. This conclusion was not altered by the fact that it had subsequently been established that the applicant had flown to the Netherlands from Istanbul, since this information had come to light without any help from the applicant. 26.     The Minister further considered that the applicant had made unreliable statements as to his date of birth and his age. Although he had submitted that he was 17 years of age, an examination had shown that he was at least 20. This was also deemed seriously to affect the credibility of his account. 27.     The Minister found that, in any event, the reasons advanced by the applicant for his flight were insufficient to qualify him for refugee status. The situation in Somalia for asylum seekers, whether or not they belonged to the Ashraf population group, was not such that the mere fact of coming from that country was sufficient in order to be recognised as a refugee. The applicant's account contained insufficient indications that he had made himself known as an opponent of the (local) rulers. He had never been a member or sympathiser of a political party or movement, nor had he ever been arrested or detained. 28.     The applicant's claim that he had been harassed from when he was a child by members of the Abgal clan because he belonged to a minority in the area where he lived was also deemed insufficient to qualify him for refugee status. In this context the Minister held that the problems experienced by the applicant had not come about as the result of systematic, major acts of discrimination which rendered his life unbearable. Rather, these problems should be seen as a consequence of a generally unstable situation in which criminal gangs frequently, but arbitrarily, intimidated and threatened people. 29.     The applicant's claims that he had been held for one day in May 2001 and had been forced to perform hard labour, and that he had several times been threatened with death by members of the Abgal, were also deemed insufficient. The Minister considered that the applicant's situation could not have been desperate, given that he had stayed in the area where he was living despite having been the victim of extortion. This conclusion was not altered by the applicant's claim that he had wanted to leave sooner but had lacked the money. 30.     The Minister concluded that there had not appeared to be a real risk of the applicant's being subjected to treatment in breach of Article 3 of the Convention on his return to Somalia. Moreover, the applicant was not eligible for a residence permit under the policy of leniency towards asylum seekers who had undergone trauma ( traumatabeleid ), given that the alleged murder of his brother had occurred as far back as March/April 2002 and the alleged rape of his sister as far back as 1998 and June/July 2002. 31.     According to the Minister the return of the applicant to Somalia, given the general situation there, did not amount to an unduly harsh measure since, in order to avoid any future problems, he could settle in one of Somalia's relatively safe areas. The applicant had only heard, but had no proof, that he would experience the same problems there because he belonged to a minority. There was no reason to conclude that a general humanitarian emergency pertained in those areas. Whether or not the applicant had family or clan ties in the relatively safe areas, or whether or not he had ever been there before, was of no significance in this context. 32.     The Minister found that the applicant was not stateless since he held Somali nationality. Therefore, the applicant was not eligible for a “no-fault residence permit”. Finally, the Minister extended the measure depriving the applicant of his liberty. 33.     On 26 June 2003 the applicant appealed against the rejection of his request for asylum. He argued, inter alia , that a controversial method had been used to determine whether or not he was a minor, that the Minister had ignored the fact that his horrific experiences had their roots in a form of ethnic exclusion and exploitation and that no internal flight alternative existed within Somalia. The same day he also filed an objection ( bezwaar ) against the refusal to grant him a “no-fault residence permit” for stateless persons. The appeals against the deprivation of his liberty which he was deemed to have lodged by means of a ministerial notification were rejected by the Regional Court of The Hague sitting in Haarlem, by decisions of 2   June, 14 July, 25 August, 14 October and 1 December 2003 and 14   January 2004. 34.     On 15 August 2003 the Minister rejected the applicant's objection against the refusal to grant him a “no-fault residence permit” for stateless persons. She maintained that the applicant was not stateless; although there was no effective government in Somalia at the present time, the possibility existed that one would be established in the future. Moreover, the international community did not doubt the existence of the State of Somalia. 35.     Following a hearing on 16 September 2003 the Regional Court of The Hague sitting in Amsterdam dismissed the applicant's appeal against the rejection of his request for asylum on 7 November 2003. The Regional Court did not agree with the Minister that the applicant's account was rendered implausible as a result of the incorrect date of birth; according to the Regional Court, the applicant had merely stated what he had been told by his mother. However, for the remainder, the Regional Court considered that the Minister's view that the applicant's situation as he described it was insufficiently serious to qualify him for refugee status was well ‑ founded. The Regional Court agreed with the Minister that the problems experienced by the applicant had come about not so much as the consequence of a targeting of the applicant personally; rather, the events were to be seen as a result of the generally unstable (security) situation in Somalia, where intimidation and insults by criminal groups regularly and arbitrarily occurred. In this context the Regional Court attached relevance to the fact that the applicant could have removed himself from the situation pertaining in his immediate environment by moving to the “relatively safe areas” of Somalia, as appeared from, inter alia , the country reports ( ambtsberichten ) drawn up by the Minister of Foreign Affairs (see paragraph 47 below). In view of the foregoing, the Regional Court further held that the Minister had been correct in finding that the applicant had failed to substantiate his claim that he would run a real risk of being subjected to treatment in breach of Article 3 of the Convention if he were expelled to his country of origin. Finally, the Regional Court, referring to a judgment of the Administrative Jurisdiction Division of the Council of State (see paragraph 85 below), considered that the Minister could reasonably have taken the view that the applicant's return to Somalia did not constitute an exceptionally harsh measure in the context of the overall situation there, having regard to the fact that rejected asylum seekers belonging to minority groups could remove themselves from any problems they might experience by staying in the “relatively safe areas” of Somalia. The applicant did not lodge a further appeal ( hoger beroep ) with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ) against the dismissal of his appeal, his lawyer advising him that, in view of that body's established case ‑ law concerning the availability of an alternative place of abode in Somalia, such further appeal would stand no chance of success. 36.     Having been informed that he was to be issued with a European Union (“EU”) travel document and deported to the “relatively safe areas” of Somalia, via Nairobi, on 16 January 2004, the applicant lodged an objection with the Minister on 8   January on the basis of section 72(3) of the Aliens Act 2000. He further requested the Regional Court of The Hague sitting in Amsterdam to issue a provisional measure to the effect that he would not be deported pending the appeal. The applicant argued that there were too many incongruities surrounding his deportation as planned: not only was the legal basis of the EU travel document unclear, it was also not known whether the authorities in Puntland and the Somali province of Mudug allowed persons travelling on such documents entry to their territory. In addition, the applicant, as a member of a minority unable to obtain protection from one of the ruling clans, would be forced to live in a camp for internally displaced persons (“IDPs”) in the “relatively safe areas”, where the conditions were so appalling that they had been described by the UN Independent Expert on the Situation of Human Rights in Somalia as a clear violation of human rights. This expert had also noted that the most pressing issue of concern in Puntland was discrimination against minorities who had no government or armed protection and were therefore vulnerable to sporadic rape and looting. 37.     The provisional measures judge ( voorzieningenrechter ) of the Regional Court of The Hague sitting in Amsterdam rejected the applicant's request for a provisional measure on 20 January 2004. The judge held that deportation with an EU travel document would be unlawful only if there were indications that entry to a territory would be denied to persons travelling with such a document. No such indications existed. Moreover, the airline company transporting rejected asylum seekers from Nairobi to Somalia had undertaken to return the persons concerned should they be denied entry to Somalia. The fact that an expulsion via Nairobi entailed a short stop at an airport in Mogadishu was insufficient to conclude that there would be a risk of treatment in breach of Article 3 of the Convention. Finally, the Regional Court considered that the recent tensions between Puntland and Somaliland did not render the expulsion unlawful, given that the applicant would be expelled to the province of Mudug. 38.     Meanwhile, on 15 January 2004, the applicant introduced the present application. He also requested the Court under Rule 39 of the Rules of Court to indicate to the Government not to expel him pending the proceedings before the Court. That same day, the President of the Chamber decided to indicate to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant. Thereupon, the Netherlands decided not to proceed with the applicant's expulsion. The applicant was also released. 39. On 27 February 2004 the Minister dismissed the applicant's objection against the decision to expel him. His appeal to the Regional Court of The Hague sitting in Amsterdam was declared inadmissible on 10   January   2005. The Regional Court held that the applicant no longer had an interest in a determination of the merits of his objection in view of the fact that its aim, a halt to the expulsion, had been achieved since, following the interim measure indicated by the European Court, it had been decided not to proceed with his expulsion. This decision was upheld by the Administrative Jurisdiction Division of the Council of State on 27 May 2005. 40.     On 7 July 2005 the Government informed the Court that the applicant was eligible for a residence permit on the basis of a temporary “policy of protection for certain categories” ( categoriaal beschermingsbeleid , see paragraphs 42-43 and 87 below) adopted by the Minister on 24 June 2005 in respect of asylum seekers coming from certain parts of Somalia. Pursuant to this information, the applicant lodged a fresh application for asylum on 23   September 2005. The application was granted on 10 March 2006. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Asylum 41.     As of 1 April 2001 the admission, residence and expulsion of aliens have been regulated by the Aliens Act 2000 ( Vreemdelingenwet 2000) , the Aliens Decree 2000 ( Vreemdelingenbesluit 2000 ), the Regulation on Aliens 2000 ( Voorschrift Vreemdelingen 2000 ) and the Aliens Act Implementation Guidelines 2000 ( Vreemdelingencirculaire 2000 ). The General Administrative Law Act ( Algemene Wet Bestuursrecht ) is also applicable, except where otherwise stipulated. 42.     On the basis of section 29(1) of the Aliens Act 2000, in force at the relevant time, a residence permit for the purposes of asylum may be issued to an alien: (a)     who is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951 (“the 1951 Convention”); (b)     who makes a plausible case that he or she has well-founded reasons for believing that, if expelled, he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment; (c)     who cannot, in the opinion of the Minister, for compelling reasons of a humanitarian nature connected with the reasons for his or her departure from the country of origin, reasonably be expected to return to that country; or (d)     for whom return to the country of origin would, in the opinion of the Minister, constitute an exceptionally harsh measure within the context of the overall situation there. 43.     Pursuant to section 29(1)(d) the Minister may pursue a policy of protection for a particular category of asylum seekers. Section 3.106 of the Aliens Decree 2000 specifies the indicators that are used to assess whether such a policy would be justified. In brief, they are the nature, degree and geographic spread of the violence in the country of origin, the activities of international organisations (in so far as they bear strongly on the position of the international community with regard to the situation in the country of origin) and the policies of other Member States of the European Union. Protection for certain categories is based on considerations related not to specific persons but to the overall situation or patterns of violence in the country of origin. The criterion of exceptional harshness, laid down in section 29(1)(d), is not a formal one, such as the declaration of a state of siege, a state of war or the existence of some form of armed conflict, but a material one. It relates to whether the risks that could arise on a person's return, in connection, inter alia , with armed conflict or the like would be unreasonable from a humanitarian perspective or from the perspective of the law of armed conflict. In general, protection for certain categories is justified only if armed conflict (including armed civil conflict) has disrupted daily life to such an extent that such humanitarian risks arise. 44.     An asylum seeker whose application for asylum has been rejected may appeal against that decision to the Regional Court of The Hague. Further appeal from the Regional Court's judgment lies to the Administrative Jurisdiction Division of the Council of State. 45.     Section 45 of the Aliens Act 2000 stipulates that a decision rejecting an asylum application automatically has the following consequences: the alien is no longer legally resident in the Netherlands, his or her access to services for asylum seekers is terminated and he or she is required to leave the Netherlands within a fixed time-limit, failing which the competent authorities are authorised to expel the person concerned. A separate removal order is therefore not required. However, section 72(3) of the Aliens Act 2000 stipulates, in relation to means of redress, that acts taken in respect of an alien – including expulsion – are to be equated with a decision ( beschikking ) within the meaning of the General Administrative Law Act. As a result, the remedies provided for in that Act – objection and appeal – may be employed in respect of the manner in which an expulsion is to be carried out or if the situation at the time of expulsion differs from that at the time of the final rejection of the asylum application in such a way that it can no longer be said that the lawfulness of the expulsion has already been established. 46.     As a rule, the Netherlands authorities do not monitor asylum seekers after expulsion, since it is held that this is not appropriate in the context of a conscientious asylum procedure and would undermine the credibility of the decisions emerging from that procedure. It is argued that if an application for asylum has been rejected and the courts have determined that this decision was correct, there is no reason to suppose that on returning to the country of origin, the asylum seeker in question will face persecution or a breach of Article 3 of the Convention. If the latter were the case, he or she would have been granted a residence permit for the purposes of asylum pursuant to section 29(1)(b) (see paragraph 42 above). B.     Netherlands policy on Somali asylum seekers 47.     The respondent Government's policy on Somali asylum seekers has been devised by the Deputy Minister of Justice ( Staatssecretaris van Justitie ) and, since 2002, by his successor, the Minister of Immigration and Integration, on the basis of country reports published by the Minister of Foreign Affairs, who in 1993 published the first such report on the general situation in Somalia. 1.     Country reports and policy based on them prior to November 2004 48.     The country report issued in February 2000 indicated that in the “relatively safe” areas the need for protection by one's own clan was declining as the effectiveness with which the regional authorities maintained security was increasing. Although this did not mean that the clan no longer played a role in Somali society, protection by one's own clan or family was no longer considered necessary in the “relatively safe” areas, where the local and regional authorities were generally able to maintain peace and security and to offer an inclusive, neutral form of protection. As a result, the policy pursued as of April 2000 no longer included the principle of clan protection on a person's return. 49.     While the country report dated June 2001 found that the position of minorities in the “conflict” area continued to be bad, it nevertheless stated that despite this lack of security, it was not the case that all persons belonging to a minority had to fear (person-specific) persecution for the sole reason that they belonged to that minority. As the June 2001 report further found a continuation of the trend towards a diminishing need for clan (or family) protection in the “relatively safe” areas, the then Deputy Minister of Justice abolished on 24 September 2001 the policy of protection for certain categories of Somalis (see paragraphs 42-43 above), which until then had still been applied to members of two particular clan families. Even though the situation in the “conflict” and “transitional” areas of the country could support the conclusion that such a policy continued to be called for, the government took the view that an alternative place of abode for all failed Somali asylum seekers, including minorities, was available in the “relatively safe” areas. In addition, asylum seekers in respect of whom it had been determined that they had a well-founded fear of persecution or that they ran a real risk of being subjected to treatment in breach of Article 3 of the Convention were not eligible for a residence permit for the purpose of asylum if it was established that they could remove themselves from the perceived threat of persecution or real risk by settling elsewhere within the country of origin. 50.     According to the country report issued in March 2003, Somalia could be divided into the following areas, in terms of the risk for non ‑ combatants of falling victim to conflict-related violence or political violence: -     the “conflict” area in southern Somalia, consisting of Mogadishu, Kismaayo, the environs of those cities and the provinces of Bay and Bakool; -     the “transitional” area in southern Somalia, consisting of the provinces of Lower and Middle Juba and Middle Shabelle (in so far as they were not part of the conflict area), Gedo and the north-western part of the province of Galgaduud; -     the “relatively safe” part of Somalia, consisting of the northern provinces of Adwal, Woqooyi Galbeed, Togdheer, Sahil, Sanaag, Sool, Bari, Nugaal and the north of Mudug (together making up the self-declared State of Somaliland in the north-west and the self-declared autonomous region of Puntland in the north-east), the south of Mudug, the central provinces of Hiran and Galgaduud (in so far as they were not in the “transitional” area) and the islands off the coast of southern Somalia. 51.     The March 2004 country report emphasised once more that clan protection was not necessary and that the security situation was not so bad that all members of a given minority were justified in fearing person ‑ specific persecution due to their minority status, even if it was the case that minorities and the clanless were more likely to fall victim to intimidation and abuse by armed militia members. 2.     The November 2004 country report 52.     In June 2004 officials from the Netherlands Ministry of Foreign Affairs paid a five-day working visit to the city of Bosasso in Puntland. The November 2004 country report was partly based on the findings of this mission. 53.     Since there was no clear difference in the number of armed clashes between the “conflict” areas and the “transitional” areas as referred to in the March 2003 country report, the November 2004 report divided Somalia into two regions, namely a “relatively safe” and a “relatively unsafe” region. On the basis of the risk run by the civilian population of falling victim to acts of violence, the two regions were defined as follows: -     the “relatively unsafe” region: Mogadishu and Kismaayo and the area around those towns, the provinces of Bay, Baykool, Lower and Middle Juba, Lower and Middle Shabelle, Gedo, Hiran and Galgaduud; -     the “relatively safe” region: the provinces making up Somaliland and Puntland, the south of Mudug and the islands off the coast of southern Somalia. 54.     As previous reports had done, the report of November 2004 further elaborated on the existence of clans and minority groups in Somalia: besides the dominant Somali nomadic culture, there are various groups with differing cultures, such as farming Somali clan families and non-ethnic Somali minority groups. The farming clan families are regarded as less “noble” by the nomadic clan families and the status of the minority groups, who are estimated to account for fifteen percent of the population, is even lower. The minorities either lack a clan structure or have a clan structure which is much less pronounced than that of the nomadic clan families. Traditionally, these minority groups have not been covered by Somali clan law and have therefore received no protection unless a clan has agreed to protect them. In general, the minority groups suffered greatly from the armed conflicts, since they were unarmed and often had some financial resources derived from their occupations. They were easy targets for robbery, looting and murder by militias. Many members of the minority groups in the south fled in the course of the civil war, particularly to Kenya and western countries, but also to Somaliland and Puntland. 55.     According to the country report, it was not known exactly how many minority groups existed in Somalia. One of the main minority groups is the Benadiri (or Reer Hamar) whose ancestors are people of Persian, Indian, Arab and Portuguese origin who settled in some of the coastal towns of Somalia from the ninth century onwards and mixed to varying degrees with the original population and subsequent newcomers. Each Benadiri group can trace its origin back to a single forefather; Benadiri often refer to these descent groups as clans. The Ashraf, consisting of two groups traditionally regarded as descendants of the two grandchildren of the Prophet Muhammad, is one of these Benadiri groups. 56.     The November 2004 country report described the position of minority groups in the “relatively unsafe” regions as bad. Members of these groups were much more likely to be victims of intimidation and assault by armed members of the militias. Notwithstanding this lack of safety, not all people belonging to a given minority group had cause to fear individual persecution simply on account of their membership of the minority, nor was the situation the same for all minority groups. As the Benadiri did not have a special relationship with one or more of the Somali clan families, they could not count on clan protection. Since the outbreak of the civil war, the Benadiri had tended to be the first victims of robbery and looting owing to their relatively isolated social position and presumed wealth. As a consequence of these problems, a large proportion of the Benadiri had fled abroad. Those who remained had often lost some or all of their possessions. Although the scale of violence had greatly decreased, they were still in a vulnerable position since they were living in the “relatively unsafe” regions. They were virtually absent from the “relatively safe” areas and their numbers there were too small for general statements to be made about them. 57.     Since the civil war, the populations of towns and cities in the “relatively safe” areas had skyrocketed, partly owing to an influx of displaced persons from the south and partly owing to migration from rural to urban areas. Many displaced persons had managed to settle in their new areas on a lasting basis. Almost all of them had ties with the inhabitants of the area, for example because they were members of the same clan family or because a relative came from there. A social safety net might also be provided by other ties, for instance with old school friends, neighbours or business partners. Displaced persons without such ties almost invariably ended up in miserable settlements for the internally displaced, with no real chance of proper integration. 58.     There were still some 30,000 people living in settlements for displaced persons in Puntland, of whom 28,000 were living in the town of Bosasso. The majority of these people originated from southern Somalia and also comprised members of the Midgan and Bantu minorities. The camp-dwellers perceived poor accommodation and lack of affordable sanitation as the most serious problems. They were living in huts built from discarded materials which did not provide adequate protection against Bosasso's harsh climate. There was also a serious risk of fire, as the high winds could easily cause cooking fires to get out of control. Another problem was security in the camps: theft and occasional crimes of violence. Whenever an incident was reported to the police, there was an investigation and increased patrolling for about a week, but in most cases the police were unable to catch the culprits. However, camp-dwellers said this was not because of discrimination. 59.     In Somaliland, displaced persons were also living in miserable huts that they had built for themselves from discarded materials. In October 2003 the Somaliland Government decreed that all displaced persons who were not originally from Somaliland must leave the country. Although no one was actually deported, it was made abundantly clear to displaced persons from southern Somalia that they were no longer welcome. Most of them had moved to Puntland or Yemen. 60.     No reports of violent incidents on the islands off the coast of southern Somalia had been received in the period under review. Since 2001, members of the Darod/Marehan clan have had control of these islands, which are also inhabited by members of the Bajuni minority who are employed in the fishing industry by members of the aforementioned clan. 61.     According to the November 2004 report, the rate of crime in the “relatively safe” areas was low, certainly compared with other countries in Africa. In general, the local and regional administrative authorities were able to maintain law and order, if necessary with the help of the police. In Somali society, law enforcement had always been primarily the preserve of clan elders, village elders, imams and other community leaders. This traditional form of law enforcement was, by its very nature, much less effective if the victim was a member of a minority group or of a small, poorly armed clan. As a result, displaced persons and unarmed minorities were an easy target for criminals. The police force of a given city contained members of all the clans who lived there, as well as a few members of minority groups and a small number of women. Although the police discriminated against minority groups and displaced persons, they seldom refused categorically to act. Where a displaced person or member of a minority group was a victim of crime, the police would generally take adequate (or reasonably adequate) action, even though it was likely that they would be less inclined to do their best for a displaced person than for local inhabitants belonging to the clans. However, if there was a dispute with a clan member, there was a real likelihood that the police would take the side of that clan member. In such cases there were indications that police officers might even commit crimes against displaced persons or members of minority groups. 62.     The country report concluded that in general, displaced persons in the “relatively safe” parts of Somalia could be said to have a marginal, isolated position in society. This made them vulnerable, and they were