CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 juin 2011

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margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sF3108B01 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt }     FOURTH SECTION           CASE OF SUFI AND ELMI v. THE UNITED KINGDOM   (Applications nos. 8319/07 and 11449/07)             JUDGMENT       STRASBOURG   28 June 2011     FINAL   28/11/2011     This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. TABLE OF CONTENTS Page PROCEDURE     THE FACTS   I.     THE CIRCUMSTANCES OF THE CASE   II.     RELEVANT DOMESTIC LAW AND PRACTICE   III.     RELEVANT EUROPEAN UNION LAW   IV.     RELEVANT PRINCIPLES OF INTERNATIONAL PROTECTION   V.     RELEVANT INFORMATION ABOUT SOMALIA   VI.     RELEVANT CASE LAW   VII.     RELEVANT COUNTRY INFORMATION     THE LAW   I.     ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE   CONVENTION 1.   General principles applicable in expulsion cases 2.   The relationship between Article 3 of the Convention and article   15(c) of the Qualification Directive 3.   The weight to be attached to the report of the fact-finding mission to Nairobi 4.   The security situation in Mogadishu 5.   Conditions in southern and central Somalia     (outside Mogadishu) 6.   Summary of the Court’s conclusions 7.   Application of the aforementioned principles to the applicants’   cases   II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION   III.     RULE 39 OF THE RULES OF COURT   UNHQ MAP OF SOMALIA ................................... 77   In the case of Sufi and Elmi v. the United Kingdom , The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lech Garlicki, President,   Nicolas Bratza,   Ljiljana Mijović,   Sverre Erik Jebens,   Päivi Hirvelä,   Ledi Bianku,   Vincent A. De Gaetano, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 14 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos. 8319/07 and 11449/07) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Somali nationals, Mr Abdisamad Adow Sufi and Mr Abdiaziz Ibrahim Elmi (“the applicants”), on 21 February 2007 and 14 March 2007 respectively. 2.     The applicants, who had been granted legal aid, were represented by Ms N. Mole of the Aire Centre, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. 3.     The applicants alleged that if returned to Somalia they would be at real risk of ill-treatment contrary to Article 3 and/or a violation of Article 2 of the Convention. They also complained that their removal would disproportionately interfere with their rights under Article 8 of the Convention. 4.   On 23 February 2007 and 14 March 2007 the Acting President of the Chamber to which the cases were allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings that the applicants should not be expelled to Somalia pending the Court’s decision. The Court also decided to grant priority to the applications under Rule 41 of the Rules of Court. 5.     On 23 February 2007 and 26 March 2007 the Acting President of the Fourth Section decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). 6.     The applicants and the Government each filed observations on the admissibility and merits of the case (Rule 59 § 1). 7.     At the Government’s request the cases were adjourned on 7 October 2008 pending the decision of the Court of Appeal in HH (Somalia), AM   (Somalia), J (Somalia) and MA (Somalia) v Secretary of State for the Home Department [2010] EWCA Civ 426. The adjournment was lifted when the Court of Appeal delivered its judgment on 23 April 2010. 8.     The applicants and the Government each filed further observations in October 2010. 9.     The Chamber decided to join the applications (Rule 42 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The facts of the case, as submitted by the applicants, may be summarised as follows. A.     The first applicant 11.     The first applicant, Mr Abdisamad Adow Sufi, is a Somali national who was born in 1987 and is currently in detention in an Immigration Detention Centre in West Drayton. 12.     On 30 September 2003 he entered the United Kingdom clandestinely using false travel documents. On 3 October 2003 he claimed asylum on the ground that as a member of the Reer-Hamar, a sub-clan of the minority Ahansi clan, he had been subjected to persecution by Hawiye militia, who had killed his father and sister and seriously injured him. As a consequence, he had no surviving relatives in Somalia. 13.     On 15 April 2005 the Secretary of State for the Home Department refused the first applicant’s asylum application, finding, inter alia , that the fact he had remained in Somalia until 2003 undermined his claim to be a member of a minority clan. On 16   May 2005 he appealed against the refusal of the application on both asylum and human rights grounds, namely Articles 2 and 3 of the Convention. On 29 June 2005 both the asylum appeal and the human rights appeal were dismissed by an Adjudicator who found that his account of what had happened to him in Somalia was not credible. 14.     On 7 October 2005 the first applicant pleaded guilty to two offences of burglary, five offences of dishonestly obtaining goods by deception and one offence of attempting to dishonestly obtain goods by deception. On   29   November 2005 he was sentenced to 18 months’ imprisonment. On   14 February 2006 he was convicted, inter alia , of threats to kill and was sentenced to a further six months’ detention at a Young Offender Institution. He was later sentenced to three months’ imprisonment following a conviction for indecent exposure in October 2007 and to thirty-two months’ imprisonment following a conviction for five counts of burglary and theft and two counts of attempted burglary in July 2009. 15.     On 15 July 2006 the first applicant was served with a decision to make a deportation order, in which the Secretary of State noted the seriousness of his offences and the need to protect the public from serious crime and its effects. He also noted that he was 19 years of age, in good health and single. Although he had been resident in the United Kingdom for almost two years, he had spent his youth and formative years in Somalia. In the circumstances, it would not be unreasonable to expect him to readjust to life there. The Secretary of State for the Home Department also considered Article 8 of the Convention but concluded that the first applicant’s deportation would not constitute a disproportionate interference with his right to respect for his family and private life. 16.     On 4 September 2006 his appeal against the Secretary of State’s decision was rejected by an Immigration Judge. On 1 November 2006 a deportation order against the first applicant was signed and an application for judicial review of the deportation decision was refused in January 2007. 17.     On 27 February 2007 the Court granted the first applicant interim measures under Rule 39 of the Rules of Court to prevent his removal to Somalia prior to the Court’s consideration of his application. B.     The second applicant 18.     The second applicant, Mr Abdiaziz Ibrahim Elmi, is a Somali national who was born in 1969 and is currently detained in an Immigration Detention Centre. 19.     He was born in Hargeisa, which is now the capital of the self ‑ declared state of Somaliland. When he was two years of age, his family moved to Mogadishu and he never returned to the north of the country. 20.     His father, a high-ranking officer in the army during the Barré regime, was appointed to the Somali Embassy in London as a military attaché in 1988. The second applicant joined him in the United Kingdom on 18   October 1988 and was given six months’ leave to enter. On   1   March   1989 his father died. On 26 April 1989 the second applicant made an application for asylum based on his father’s position in the Somali army and the beginning of the civil war in Somalia. On 31 October 1989 he was recognised as a refugee and granted leave to remain until 31   October   1993. On 7 January 1994 he was granted Indefinite Leave to Remain in the United Kingdom. 21.     The second applicant was convicted of a road traffic offence in June   1992. On 8 March 1996 he was sentenced to a total of five years and six months’ imprisonment by a Crown Court for handling stolen goods, obtaining property by deception, robbery and possessing an imitation firearm while committing an offence. On 13 November 2000 he was convicted of perverting the course of justice and sentenced to three months’ imprisonment. In the same year he was convicted on further counts of theft and road traffic offences. On 16 March 2001 he was convicted of theft by a Magistrates’ Court and placed on a curfew. On 7 June 2001 he was again convicted of theft and sentenced to 3 months’ imprisonment. On   23   May   2002 he was convicted by a Crown Court on eight counts of supplying class A drugs (cocaine and heroin) and on 7 November 2002 he was sentenced to 42 months’ imprisonment. On an unspecified date the second applicant was released on licence. On 21   June 2004 he was sentenced to 12 months’ imprisonment by a Crown Court for burglary and theft. 22.     On 21 June 2006 a decision was made to issue a deportation order by virtue of section 3(5) of the Immigration Act 1971 and the second applicant was invited to rebut the presumption that his continued presence in the United Kingdom constituted a danger to the community. 23.     He accepted that he was a drug addict but submitted that he did not constitute a danger to the community because he had made efforts to overcome his addiction and had recognised his past wrongdoings. However, on 4   September 2006 the Secretary of State for the Home Department found that he had failed to demonstrate that he would not constitute such a danger. In respect of his rights under Articles 2 and 3 of the Convention, the Secretary of State found that even though he had been living in the United Kingdom and could be identified as such he would not be at risk on return to Somalia as he was a member of the Isaaq, a majority clan. In respect of his rights under Article 8 of the Convention, the Secretary of State accepted that he had family ties with his three sisters and his mother in the United Kingdom but did not consider that these relationships constituted family life for the purposes of Article 8 as there was no evidence of dependency going beyond the normal emotional ties. The Secretary of State therefore concluded that his removal would not violate Articles 2, 3 or 8 of the Convention. 24.     On 27 October 2006 the second applicant’s appeal against the decision of the Secretary of State for the Home Department was refused by the Asylum and Immigration Tribunal (“AIT”), which considered that he could obtain clan protection in any part of Somalia as he was a member of a majority clan. Although the AIT accepted that he would not find support in relation to his drug dependency in Somalia, it found that this did not suffice to rebut the presumption in favour of deportation. As to his Article 8 claim, the second applicant had not shown that family life existed amongst his adult siblings and, even if it did, he had not shown that his circumstances were “truly exceptional so that his removal would violate his Article 8 rights”. Finally, the AIT noted that the sale of drugs posed a danger to the community and there was a real likelihood of the second applicant re ‑ offending. 25.     A deportation order against the second applicant was signed on 8   January 2007 and on 6 March 2007 he was served with removal directions. On 14 March 2007 he requested, and was granted, interim measures under Rule 39 of the Rules of Court to prevent his removal before his application was considered by the Court. 26.     On 3 March 2008 the second applicant was convicted of possession of a Class A controlled drug with intent to supply and was sentenced to eighteen months’ imprisonment. On 8 July 2010 he was again charged with possession of a Class A drug with intent to supply. A hearing has not yet taken place. II.     RELEVANT DOMESTIC LAW AND PRACTICE 27.     At the material time, following the refusal of an asylum application by the Secretary of State for the Home Department, an applicant had a right of appeal to the Asylum and Immigration Tribunal (“the AIT”). Section 103A of the Nationality, Immigration and Asylum Act 2002 (as inserted by section 81(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004) provided that a party to an appeal to the AIT could apply for an order that the AIT reconsider its decision on appeal on the ground that it had made a material error of law. 28.     Once the appeal process against the refusal of an asylum application had been exhausted, an applicant could continue to make further submissions to the Secretary of State for the Home Department. Paragraph 353 of the Immigration Rules (HC 395, as amended by HC 1112) stated that: “When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i)     had not already been considered; and (ii)   taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” 29.     Where a person was not granted leave to enter the United Kingdom, he or she could be subject to administrative removal pursuant to paragraph 8 of Schedule 2 of the Immigration Act 1971. Pursuant to section 3(5) of the 1971 Act, the Secretary of State also had power to deport any person who was not a British citizen on the ground that his deportation would be “conducive to the public good”. III.     RELEVANT EUROPEAN UNION LAW 30.     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”) has the objective, inter alia , of ensuring European Union (“EU”) Member States apply common criteria for the identification of persons genuinely in need of international protection (recital six of the preamble). In   addition to regulating refugee status, it makes provision for granting subsidiary protection status. Article 2(e) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin. Serious harm is defined in article 15 as consisting of: (a) death penalty or execution; (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. 31.     On 17 October 2007 the Dutch Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State ), when considering the case of M. and N. Elgafaji v. Staatssecretaris van Justitie (the Deputy Minister of Justice), lodged a reference for a preliminary ruling with the European Court of Justice (“ECJ”) asking, inter alia , whether article 15(c) of the Directive offered supplementary or other protection to Article 3 of the Convention. 32.     The ECJ held that article 15(c) protection went beyond that of Article 3 of the Convention, which was covered by article 15(b) of the Qualification Directive. The ECJ summarised the criteria to be applied as follows: “Article 15(c) of the Directive, in conjunction with article 2(e) of the Directive, must be interpreted as meaning that the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances, and the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place ... reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.” 33.     In QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620 the Court of Appeal observed that the ECJ in Elgafaji had not introduced an additional test of exceptionality, but had simply stressed that not every armed conflict or violent situation would attract the protection of article 15(c). A conflict or violent situation would only attract the protection of article 15(c) where the level of violence was such that, without anything to render them a particular target, civilians faced real risks to their lives or personal safety. 34.     More recently, in the case of HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331, the Upper Tribunal (Immigration and Asylum Chamber) did not consider it helpful to attempt to distinguish between a real risk of civilian deaths as a result of targeted attacks and a real risk as a result of incidental attacks. In the Tribunal’s opinion, the nexus between the generalised armed conflict and the indiscriminate violence posing a real risk to life and person was met when the intensity of the conflict involved means of combat, whether permissible under the laws or not, that seriously endangered non-combatants as well as to result in such a general breakdown of law and order as to permit anarchy and criminality occasioning the serious harm referred to in the Directive. IV.     RELEVANT PRINCIPLES OF INTERNATIONAL PROTECTION 35.     It is a well-established principle that persons will generally not be in need of asylum or subsidiary protection if they could obtain protection by moving elsewhere in their own country. This principle is reflected both in article 8 of the Qualification Directive and paragraph 339O of the Immigration Rules HC 395 (as amended), both of which provide that an applicant is not in need of international protection if there is a part of the country of origin where there is no well-founded fear of persecution or real risk of suffering serious harm, and where the applicant can reasonably be expected to stay. 36.     In the cases of Januzi, Hamid, Gaafar and Mohammed v Secretary of State for the Home Department [2006] UKHL 5 and AH (Sudan) v   Secretary of State for the Home Department [2007] UKHL 49 the House of Lords held that the decision-maker, taking account of all relevant circumstances pertaining to the applicant and his country of origin, must decide whether it is reasonable to expect the applicant to relocate or whether it would be unduly harsh to expect him to do so. In this regard, the relevant comparison was between the conditions which prevailed in the place of relocation and those which prevailed elsewhere in the country of his nationality, including in his former place of habitual residence. 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. However, the more closely the persecution was linked to the State, and the greater the control of the State over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place would be similarly vulnerable in another place within the same State. V.     RELEVANT INFORMATION ABOUT SOMALIA A.     Factual background 37.     The factual background to the conflict in Somalia, as described in the country reports at paragraphs 80 – 188 below and subsequently agreed by the parties, is as follows. 38.     Somalia is comprised of three autonomous areas: the self-declared Republic of Somaliland in the north west, the state of Puntland in the north east, and the remaining southern and central regions. Somali society has traditionally been characterised by membership of clan families, which are subdivided into clans and sub-clans. The four majority clans are Darod, Hawiye, Isaaq and Dir. In addition there are a number of minority groups, which are also divided into sub-groups. The Digli and Mirifle take an intermediate position between the majority clans and the minority groups. 39.     Somalia has been without a functioning central government since the overthrow of President Siad Barre by opposing clans in 1991. The clans could not agree on a replacement and lawlessness, civil conflict and clan warfare followed. Mogadishu was fragmented into rival, clan-based factions and control of the city was divided among warlords. The Transitional Federal Government was established in October 2004 but a combination of internal divisions within the Transitional Federal Government and insecurity in central and southern Somalia hindered it from becoming a functioning Government. In June 2006 the Union of Islamic Courts, a union of various Sharia courts, took control of Mogadishu. Following a period of fighting against a coalition of warlords called the Alliance for the Restoration of Peace and Counter-Terrorism, the Union of Islamic Courts took control of most of central and southern Somalia. United Nations Security Council Resolution 1725 (2006) authorised the deployment of an African Union and Intergovernmental Authority on Development force to protect the Transitional Federal Government. Ethiopian ground and air forces also moved into Somalia to support the Transitional Federal Government and by late December 2006 the Union of Islamic Courts had been ousted from Mogadishu and much of southern Somalia. Remnants of the Union of Islamic Courts withdrew to the southern reaches of the Lower Juba region where they continued to fight against the Transitional Federal Government and Ethiopian troops. 40.     After the fall of the Union of Islamic Courts, the semblance of order and security that it had created in Mogadishu deteriorated. Roadblocks and checkpoints returned, as did banditry and violence. Furthermore, attacks by anti-government elements on Transitional Federal Government and Ethiopian forces continued in Mogadishu, with civilians frequently caught up in the fighting. Homes and public infrastructure were destroyed and a significant part of the civilian population was displaced. The fall of the Union of Islamic Courts also bought to the fore some of the inter- and intra-clan rivalries that had been suppressed during the conflict and serious clan related fighting ensued. 41.     In 2007 the Alliance for the Re-Liberation of Somalia was created when Somali Islamists and opposition leaders joined forces to fight the Transitional Federal Government and Ethiopian forces. 42.     On 20 August 2008 the Transitional Federal Government and the opposition Alliance for the Re-Liberation of Somalia signed a ceasefire agreement in Djibouti. At the same time, the United Nations Security Council extended the mandate of the African Union peacekeeping mission in Somalia. However, the Islamic insurgents at the heart of the escalation in violence were not party to the ceasefire agreement, and instead indicated that they would continue to fight until Ethiopian forces withdrew from Somalia. 43.     By late 2008 Islamist insurgents, including a group called al ‑ Shabaab, had regained control of most of southern Somalia. 44.     Somalia’s Parliament met in Djibouti in January 2009 and swore in 149 new members from the Alliance for the Re-Liberation of Somalia. The Parliament also extended the mandate of the Transitional Federal Government for another two years and installed moderate Islamist Sheikh Sharif Sheikh Ahmad as the new President. 45.     Ethiopia pulled its troops out of Somalia in January 2009. Soon after, al-Shabaab took control of Baidoa, formerly a key stronghold of the Transitional Federal Government. In May 2009 Islamist insurgents launched an attack on Mogadishu, prompting President Ahmad to appeal for help from abroad. 46.     In October 2009 al-Shabaab consolidated its position as the most powerful insurgent group by driving its main rival, Hizbul Islam, out of the southern port city of Kismayo. Since then it has openly declared its alliance with al-Qaeda and has been steadily moving forces up towards Mogadishu. 47.     In December 2010 Hizbul Islam and al-Shabaab merged. B.     Parties to the conflict 1.     The Transitional Federal Government 48.     The Transitional Federal Government is recognised by the United Nations and almost all key foreign powers as the legitimate government of Somalia. However, it currently controls only a small section of Mogadishu centred on the port, the airport and the presidential palace. It is largely dependent on African Union troops for its survival. 2.     African Union Mission in Somalia (AMISOM) 49.     AMISOM is an African Union force authorised by the UN Security Council and deployed to Mogadishu to support the Transitional Federal Government. It currently consists of 5,300 Ugandan and Burundian troops. 3.     Ethiopian forces 50.     Ethiopian forces joined the conflict in 2006 to help drive out the Union of Islamic Courts. They remained in Somalia until their withdrawal at the beginning of 2009. 4.     Al-Shabaab 51.     Al-Shabaab began as part of the armed wing of the Union of Islamic Courts. When the 2006 Ethiopian military intervention sent the leaders of the Union of Islamic Courts into exile, a hard core of al-Shabaab fighters remained in Somalia to fight. In their April 2010 report, “Harsh War, Harsh Peace”, Human Rights Watch indicated that al-Shabaab was an alliance of factions rather than a single entity, but the group’s diverse leaders had a common agenda: defeating AMISOM and the Transitional Federal Government and extending Sharia law across Somalia. Some of its leaders have links with al-Qaeda although the extent of al-Qaeda’s influence over al-Shabaab remains unclear. 52.     Al-Shabaab has emerged as the most powerful and effective armed faction on the ground, especially in southern Somalia. They have received material support from the Eritrean government, which is eager to undercut Ethiopia’s interests in the region.   By the end of 2009 al-Shabaab controlled more territory than any other faction in Somalia, including Baidoa, the former seat of the Transitional Federal Government parliament, Jowhar, which had been one of the Transitional Federal Government President’s most reliable strongholds, and the strategic port of Kismayo. 53.   Al-Shabaab claimed responsibility for twin suicide bombings in the Ugandan capital Kampala on 11 July 2010, which killed 79 people watching the World Cup soccer final on television. It was al-Shabaab’s first attack outside Somalia and heightened concerns about its ability to carry out more attacks in the region and beyond. 5.     Hizbul Islam 54.     Hizbul Islam is another armed group which has both a Sharia agenda and the goal of driving AMISOM and the Transitional Federal Government from Mogadishu. In early 2009 it entered into an alliance with al-Shabaab but the alliance came to an end in October 2009 during the fight for Kismayo. In December 2010, however, it once again merged with al ‑ Shabaab. 6.     Ahlu Sunna Waljamaca 55.     Ahlu Sunna Waljamaca is an Islamist group which professes to support a more moderate agenda. The group exists primarily in central Somalia, where it has maintained control over large strips of territory, predominantly in Galgadud and Hiran regions. 56.     In February 2010 Ahlu Sunna Waljamaca signed a power-sharing and military unification pact with the Transitional Federal Government, although at times relations between the two groups were strained. VI.     RELEVANT CASE LAW A.     NM and others (Lone women – Ashraf) Somalia CG [2005] UKAIT 00076 57.     In NM and others (Lone women – Ashraf) Somalia CG [2005] UKAIT 00076 the AIT found that conditions in southern Somalia and particularly in and around Mogadishu were such that both men and women from minority clans were in danger of Article 3 ill-treatment and should be regarded as refugees in the absence of evidence of a clan or personal patron which could protect them. Men and women from majority clans were not likely to be in need of international protection, although individual circumstances required separate consideration. Although women were at greater risk than men, they would not be able to show that, simply as lone female returnees from the United Kingdom, they had no place of clan safety. Finally, the AIT held that the general conditions of life or circumstances in Somalia did not engage the obligations of the Refugee Convention or engage Article 3 of the Convention for all female returnees. A differential impact had to be shown. Being a single woman was not of itself a sufficient differentiator. 58.     The AIT observed in passing that, on the strength of the background evidence and the expert evidence given at the hearing, it would consider that any person at real risk on return of being compelled to live in an IDP camp would have little difficulty in making out a claim under Article 3, if not under the Refugee Convention. B.     HH & Others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022 59.     In HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022 the Asylum and Immigration Tribunal held that for the purposes of article 15(c) of the Qualification Directive, a situation of internal armed conflict existed in Mogadishu. The AIT held, however, that while all sides to the conflict had acted from time to time in such a way as to cause harm to civilians, they were not in general engaging in indiscriminate violence and, as a consequence, a person would not be at real risk of serious harm by reason only of his or her presence in that zone or area. 60.     The AIT found that although clan support networks were strained, they had not yet collapsed. Majority clans continued to have arms, even though their militias no longer controlled the city. A person from a majority clan, or whose background disclosed a significant degree of assimilation with, or acceptance by, a majority clan would in general be able to rely on that clan for support and assistance, including at times of displacement. A   member of a minority clan or group who had no identifiable home area where majority clan support could be found would in general be at real risk of serious harm of being targeted by criminal elements, both in any area of former residence and in the likely event of being displaced. Members of minority groups found it harder to flee and move around to escape fighting, because they were not so easily accepted in new surroundings. The AIT found that persons displaced from their home in Mogadishu without being able to find a place elsewhere with clan members or friends would likely have to spend a significant period of time in a makeshift shelter, such as those along the road to Afgooye, or in an IDP camp, and could well experience treatment proscribed by Article 3 of the Convention. 61.     Finally, the AIT held that the issue of whether a person from a minority clan would be able to find majority clan support would often need specific and detailed consideration. The evidence suggested that certain minority groups could be accepted by the majority clan of the area in question, so as to call on protection from that clan. On the current evidence, it might not be appropriate to assume that a finding of minority group status in southern Somalia was in itself sufficient to entitle a person to international protection, particularly where a person’s credibility was otherwise lacking. C.     AM & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091 62.     In its most recent Somali Country Guidance determination, the Asylum and Immigration Tribunal found that since its decision in HH there had been a number of significant changes in Somalia. 63.     First, the AIT found that by mid-2008 the armed conflict had spread beyond Mogadishu and its environs. The AIT therefore found that a situation of internal armed conflict existed throughout central and southern Somalia. In respect of the intensity of the violence, the AIT noted that “manifestly all significant armed parties to the conflict have engaged in indiscriminate attacks”. In particular, it noted that the Ethiopians were reported to have used means of war (firing inherently indiscriminate Katyusha rockets in urban areas) and methods of warfare (using mortars and indirect weapons without guidance in urban areas) that violated International Humanitarian Law. The TGF were reported to have engaged in aggression against civilians and to have acted “as if they believe that they are immune from accountability, investigation or prosecution, including for crimes under international law”. Moreover, reports indicated that insurgents had perpetrated raids, robberies and other abuses against civilians, including rape and other forms of sexual violence. The AIT referred to information received from the Inter-Agency Standing Committee (“IASC”) which expressed concerns about: “indiscriminate bombardment of civilian areas; indiscriminate use of roadside bombs and mortars from and in civilian areas; indiscriminate shooting in response to roadside bombs; arbitrary arrest and detention of civilians, including children; forced evictions; forced recruitment, including of children; sexual and gender based violence; intimidation and assassination of journalists, aid workers and civilian officials; and extra-judicial killings.” 64.     The AIT also noted that the worsening security situation was coupled with a deteriorating humanitarian situation. It observed that between 400,000 and 750,000 people had been displaced from Mogadishu and that there had been significant displacements from other towns to which armed clashes had spread. The AIT also observed first, that IDPs experienced serious problems while on the move, which included checkpoints, threats, intimidation, looting, rape, abduction and harassment; secondly, that many did not end up in camps or makeshift settlements and consequently struggled to obtain shelter, food, water and sanitation; and thirdly, that the effect of displacement appeared to reduce the ability of IDPs to count on protection from their own clan: even where they fled to a traditional area for their clan, the pressures of numbers and scarce resources could mean that newcomers were not supported or absorbed by the local community. 65.     With regard to the situation in Mogadishu, the AIT considered that: “the movements of population out of Mogadishu in the past two years have been unprecedented. UN sources have estimated (at various times) that 400,000, up to as many as 750,000 (or around one third to a half), of the population of Mogadishu have been displaced. An 8 April 2008 Voice of America report states that two thirds of Mogadishu has been turned into an urban battleground. Since the beginning of 2008 there have been significantly fewer returns. Whatever the precise figures, it is clear that the ongoing violence has forced substantial numbers to flee the city more than once and flight seems an ongoing process: the IRIN report of 29 September 2008 cites Elman estimates that 18,500 people recently fled their homes due to the fighting and shelling (COIS, A 4). The COIS Reply dated 24 October 2008 states that: “[a]ccording to the UNHCR an estimated 5,500 people were displaced from the city during the week and over 61,000 since 21 September 2008”. Armed clashes have increasingly destroyed housing, market areas (Bakara market has been deliberately shelled) and infrastructure and the recent closure of the airport is likely to make matters in Mogadishu worse. According to Grayson and Munk, the aid community has been largely ineffective in providing the necessary aid to those who have stayed in Mogadishu (Nairobi evidence 65). They also state that Mogadishu is a “ghost town” and that only the most vulnerable remain there.” 66.     It concluded that since HH the situation in Mogadishu had changed significantly, both in terms of the extent of population displacement away from the city, the intensity of the fighting and the security conditions there. On the available evidence the AIT considered that Mogadishu was no longer safe as a place to live for the great majority of its citizens. It did not rule out that there might be certain individuals who on the facts might be considered to be able to live safely in the city, for example if they had close connections with powerful actors in Mogadishu, such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs. However, barring cases of this kind, in the case of persons found to come from Mogadishu who were returnees from the United Kingdom, the AIT found that they would face on return a real risk of persecution or serious harm and it was reasonably likely, if they tried staying there, that they would soon be forced to leave or that they would decide not to try to live there in the first place. 67.     Nevertheless, the AIT were not persuaded that the situation in central and southern Somalia had reached the threshold where civilians per se or Somali civilian IDPs per se could be said to face a real risk of persecution, serious harm or treatment proscribed by Article 3 of the Convention. First, although the levels of violence had increased in intensity, the numbers of those killed and wounded was not of great magnitude. Secondly, while the humanitarian situation was dire, it did not appear that civilians per se faced a real risk of denial of basic food and shelter and other bare necessities of life. Thirdly, while there was evidence of attacks on IDPs, in view of the huge numbers of people displaced (over a million according to some reports), it appeared that the great majority of IDPs were able to travel and subsist in IDP camps or settlements without serious setbacks. 6