CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 septembre 2015

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SWEDEN   (Application no. 4601/14)                 JUDGMENT       STRASBOURG   10 September 2015     FINAL   01/02/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of R.H. v. Sweden, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Boštjan M. Zupančič,   Ganna Yudkivska,   Vincent A. De Gaetano,   André Potocki,   Aleš Pejchal, judges,   Johan Hirschfeldt, ad hoc judge, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 7 July 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 4601/14) against the Kingdom of Sweden 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 (“the applicant”) on 15 January 2014. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 4 of the Rules of Court). 2.     The applicant, who had been granted legal aid, was represented by Ms       V. Nyström, a lawyer practising in Norrköping. The Swedish Government (“the Government”) were represented by their Agent, Ms   K.   Fabian, Ministry for Foreign Affairs. 3.     The applicant alleged, in particular, that her deportation to Somalia would involve a violation of Article 3 of the Convention. 4.     On 24 January 2014 the Acting President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be deported to Somalia for the duration of the proceedings before the Court. 5.     On 14 April 2014 the application was communicated to the Government. 6.     The judge elected in respect of Sweden, Mrs Helena Jäderblom, withdrew from the case (Rule 28). The President of the Section accordingly appointed Mr Johan Hirschfeldt to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1988. 8.     On 27 December 2011 the applicant applied for asylum and a residence permit in Sweden and claimed that she had arrived in Sweden on 11 December the same year. In an interview with the Migration Board ( Migrationsverket ), at which she was informed that a search in the European asylum fingerprint database EURODAC had revealed that she had applied for asylum in the Netherlands in December 2006, the applicant stated that she had arrived in Sweden in 2007 from the Netherlands and had remained illegally in Sweden since then. She had been afraid to contact the Swedish authorities since she did not want to be returned to the Netherlands as she would be sent onwards to Italy where she had no housing or opportunity to support herself. She wanted to remain in Sweden where cousins of hers were living. 9.     As the applicant had applied for asylum in the Netherlands – under a different name and birth date – the Migration Board requested that that country take her back in accordance with the Dublin Regulation. The Dutch authorities refused, however, as she had previously applied for asylum in Italy, under a slightly different name than that given to the Board. The Italian authorities were then requested to take back the applicant. The Italian authorities did not reply to the request within the prescribed time-limit and were consequently, under Article 20(1)(c) of the Regulation, considered to have agreed to receive her. Accordingly, on 24 April 2012, the Migration Board dismissed the asylum application and decided to transfer the applicant to Italy. 10.     However, the decision became time-barred before the transfer could be realised. On 30 November 2012 the applicant therefore applied for asylum and a residence permit in Sweden again. At an asylum interview in January 2013, which lasted for two and a half hours, she submitted essentially the following. In November 2004 her family had forced her to marry an older man against her will. At the time she had for about a year had a secret relationship with a boy from school. This relationship was revealed a few days after the forced marriage when the applicant and her boyfriend had tried to escape from Mogadishu together. They had been detected by her uncles when they had been sitting on the loading platform of a truck. Both she and her boyfriend had been beaten and thrown off the truck. She had sustained injuries to her hips and had been hospitalised for a few months. Thereafter she had lived at home until August 2005 when her father had considered that her health condition permitted her to move in with her husband. She had then contacted her boyfriend and they had fled together, first to Ethiopia and then to Sudan and eventually to Libya in order to take a boat to Italy. However, the boat had sunk and the boyfriend had died. Later, while in Sweden, she had learned that her father had died in 2010 and her mother in 2011. If returned to Somalia, the applicant claimed that she would have to return to the man whom she had been forced to marry, unless she were sentenced to death for fleeing the marriage and the country. These threats would be carried out by her uncles. The applicant further asserted that she lacked a male support network in Somalia and therefore risked being sexually assaulted. As a single woman, she would further not be able to rent accommodation or otherwise organise her life and would risk becoming a social outcast. She also invoked the generally dire humanitarian situation in Somalia and, in particular, claimed that she was unlikely to find the help still needed for her injured hips. 11.     On 8 March 2013 the Migration Board rejected the applicant’s application for asylum and ordered her deportation to Somalia. At the outset, the Board found that she had failed to substantiate her identity, noting in particular that she had not submitted any identification papers and had previously applied for asylum in the Netherlands and Italy under different identities. However, it found it plausible that the applicant originated from Mogadishu. Noting that she had arrived in Sweden in 2007 but had not applied for asylum until the end of 2011 – and had thus not reported a need for protection during a period of more than four years – the Board called into question whether she had felt a real need for protection. Turning to the substantive allegations presented by the applicant in support of her application, the Board considered that they were marred with credibility issues. For example, in her initial asylum application in 2011, she had stated that she was unmarried. Only during the asylum investigation following her renewed application in November 2012 had she claimed that she had married in Somalia in November 2004. The Board found that the applicant had failed to provide a sufficient explanation for this, particularly given that this was a crucial part of her story. Furthermore, in 2011 she had only invoked the armed conflict in the country as grounds for asylum and had stated that she could not remember how she had sustained the hip injury since she had been very young at the time. She had then also said that she had stayed with a female friend in Mogadishu before leaving the country whereas she later claimed that she had lived with her parents and siblings. The Board concluded that the applicant had failed to make plausible that she had been subjected to any ill-treatment by her relatives in Somalia and consequently had failed to show that she would lack a male support network there. It noted that, according to the applicant, her brother and uncles still lived in Mogadishu. Moreover, the Board examined the general situation in Mogadishu and the particular situation of women, based on information gathered at a fact-finding mission to the city in June 2012 and further information obtained thereafter, and considered that the circumstances were not of such severity that the applicant would be unable to return there, taking into account the finding that she had a male network to protect her. In this connection, the Board also noted that the applicant had not lived in a refugee camp before leaving the country and had not claimed that she would risk doing so upon return. 12.     The applicant appealed to the Migration Court ( Migrations-domstolen ), maintaining her claims and adding, inter alia , the following. The security situation in Mogadishu was still very unstable and the particular situation of women in Somalia was extremely severe. She further asserted that, as her situation in Italy had been difficult, it was understandable that she had decided to apply for asylum under another identity in the Netherlands, in order to avoid being sent back. This had also been the reason why she had decided to stay illegally in Sweden. Moreover, she stated that the Migration Board had misunderstood her; she had stayed with a female friend in Sweden, not in Somalia where she had lived with her family. Furthermore, in her view, she was not married since she had not consented to the marriage or been present at the marriage ceremony. She submitted an x-ray image of her hip prostheses to show that she had been assaulted and injured. 13.     On 4 June 2013 the Migration Court rejected the appeal, agreeing with the Migration Board’s reasoning and findings. The court subscribed to all the misgivings concerning credibility expressed by the Board. It added that, whereas the applicant initially had claimed to have been forcibly married in 2004, in a later submission to the Board she had stated that this had been decided by her father and her uncles in 2010. Since the applicant was in general not credible, the court did not believe her statement that she lacked a male support network in Somalia. Moreover, it considered that the submitted x-ray image did not show that the applicant had been subjected to ill-treatment in her home country. 14.     By a decision of 15 July 2013 the Migration Court of Appeal ( Migrationsöverdomstolen ) refused leave to appeal. 15.     Subsequently, the applicant requested that the Migration Board re-examine her case, claiming that there were impediments to the enforcement of the deportation order. She stated that she had recently found out that her uncle, who had previously physically assaulted her, had now joined al-Shabaab, and that he had killed her sister and forced her brother to join al-Shabaab. Thus, if returned to Somalia, she would risk being stoned to death by her uncle. 16.     On 7 September 2013 the Migration Board rejected the petition, finding that no new circumstances justifying a reconsideration had been presented. It held that the alleged threats stemming from the applicant’s uncles had already been examined by the Board and the Migration Court and that, given her lack of credibility, a mere statement from her about her uncle’s actions was not sufficient to assume that she would risk being stoned upon return. The applicant did not appeal against the Board’s decision. II.     RELEVANT DOMESTIC LAW 17.     The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act ( Utlänningslagen , 2005:716). 18.     An alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1 of the Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia , a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2). 19.     Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) to allow him or her to remain in Sweden (Chapter 5, section 6). Special consideration should be given, inter alia , to the alien’s health status. According to the preparatory works (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit. 20.     As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). 21.     Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under this criteria, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections   1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19). 22.     Matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal. III.     RELEVANT INFORMATION ABOUT SOMALIA A.     Danish Immigration Service and Norwegian Landinfo 23.     The Danish Immigration Service and the Norwegian Landinfo have issued three reports in 2013 and 2014 on the situation in south and central Somalia, including Mogadishu: 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) and Update on Security and Protection Issues in Mogadishu and South-Central Somalia (March 2014). The reports are based on their fact-finding missions to Nairobi and Mogadishu in October 2012, April/May 2013 and November 2013, respectively, during which they consulted national and international non-governmental organisations (NGOs), international organisations, including United Nations agencies, and individuals, most of whom wished to remain anonymous. 24.     The May 2013 report cited the United Nations Department of Security and Safety (UNDSS), Mogadishu, as saying that al-Shabaab had withdrawn from Mogadishu in August 2011 but the withdrawal had only been completed by the end of May 2012. Armed attacks continued, however, and the UNDSS stated that al-Shabaab was not trying to retake Mogadishu but was using the attacks as a form of harassment and as a reminder of its presence. The usual courses of action were hit-and-run attacks, hand grenade attacks and targeted killings. There were also occasional mortar and other indirect fire attacks. The report further referred to several international NGOs which echoed the statements by the UNDSS. Thus, there had been improvements in the security situation for people in Mogadishu after al-Shabaab had left in August 2011: there was no armed struggle and no frontline in the city, people could move freely around and they had full access to all districts. However, there were still threats: the influence of al-Shabaab was not visible but the organisation was able to undertake attacks all over the city. It mainly targeted members of the government and Parliament, soldiers of the African Union Mission in Somalia (AMISOM) and the Somali National Armed Forces (SNAF), police, people working for international organisations, people suspected of spying for the government and al-Shabaab deserters. Al-Shabaab did not kill civilians deliberately or indiscriminately, but when staging large-scale attacks it did not mind if civilians were killed. One NGO described the situation of civilians thus: “[T]he risks involved in living in Mogadishu are basically a question of being at the wrong place at the wrong time, but being increasingly desperate al-Shabaab wants to send the message that Mogadishu is not safe”. 25.     These assessments on the security situation in Mogadishu were confirmed in the March 2014 report. The UNDSS explained that there had been an overall improvement in terms of the Somali forces expanding their reach in Mogadishu, but that the city remained very fragmented. An international NGO stated that security had improved since April 2013 in certain areas of south and central Somalia, but that there were still security-related issues which directly affected all government people, government affiliates, international employees, contractors who dealt with the international community and UN staff as well as many others. Although al-Shabaab was not in control of any part of Mogadishu it could still reach all over the city. The targeted killings continued and there were criminal actions as well. Another international NGO said that the security situation in Mogadishu had gradually improved during the preceding two years but was still not good. 26.     All three Danish/Norwegian reports mentioned that it was very difficult, if not impossible, to present figures on civilian casualties, as no system of monitoring had yet been put in place. However, an international organisation as well as NGOs referred to in the first report believed that there had been a decrease in the number of civilian casualties in Mogadishu compared to the preceding few years. This decrease was reportedly due to front-line fighting having moved out of Mogadishu. There were fewer mass-casualty attacks and killings, in particular due to the cessation of shelling in Mogadishu. Still, civilian casualties remained a daily occurrence, principally due to assassinations, improvised explosive devices (IEDs) and suicide attacks, and reactions to these attacks by armed forces. In January 2014, the United Nations High Commissioner for Refugees (UNHCR) stated that there had been an increase in the number of attacks by al-Shabaab since the Danish/Norwegian report from May 2013, including in places where civilians gathered, i.e. markets, hotels and public places. The UNDSS held that there had been an increase of targeted killings of ordinary civilians, which could be due to their being easier to hit than high-ranking personalities and other high-profiled persons who were surrounded by more security. An international agency and an international NGO stated, however, that al-Shabaab did not deliberately kill ordinary civilians, but continued to target mainly the police force, the military and security forces as well as politicians. Al-Shabaab’s strategy was to prevent progress and normalisation of life, not to kill civilians. Several organisations and individuals interviewed pointed out that it was sometimes difficult to know who were behind the attacks in Mogadishu; the perpetrators were not always al-Shabaab but could also be other actors such as criminals, political rivals and disgruntled people. As stated by the UNDSS in the May 2013 report, SNAF soldiers also committed crimes against civilians and there existed so-called District Commissioners who collected a “tax” which was basically protection money. 27.     In regard to the situation for women, the May 2013 report included testimony that sexual and gender-based violence had increased manifold during the preceding year. While verified reports showed an overall improvement in security for ordinary people, sexual and gender-based violence was a very serious issue and could even be increasing due to the liberation of areas under the control of al-Shabaab. The UNHCR in Mogadishu stated that in light of the prevalence of gender-based violence, female heads of households or single women, without access to nuclear family and clan protection mechanisms, as well as children were at a heightened risk of violations. The third Danish/Norwegian report referred to the Human Rights Watch which in its 2014 World Report , published in January 2014, had expressed that Somali women and girls faced alarming levels of sexual violence throughout the country. Internally displaced women and girls were particularly vulnerable to rape by armed men including government soldiers and militia members. Security forces had also threatened individuals who had reported rape, and service providers. The Mogadishu-based NGO Somali Women Development Center (SWDC) stated, however, that there had been a remarkable change in Mogadishu between May and November 2013. Through improved opportunities for the government to secure peace, security for ordinary residents in Mogadishu had improved considerably. People now trusted the police and the National Intelligence and Security Agency and were enjoying increased freedom of movement and security. The SWDC emphasised that women had complete freedom of movement in all locations in Mogadishu except for the large Bakara market where al-Shabaab was present. They could drive a car, go to the local market and move around by themselves and faced no harassment at checkpoints. 28.     On the issue of returns to Mogadishu and south and central Somalia, the May 2013 report referred to a commentator from UNHCR who stated that many people from the diaspora were returning and there was in general no discrimination on the ground of belonging to the returning diaspora. Other commentators expressed differing views on the attitude of those who had stayed behind towards the returning diaspora; while some interviewees focused on the benefits of investments, modernisation and new skills that the diaspora brought with them, others mentioned that there was friction between the two groups, as the diaspora were seen as competitors taking jobs from locals and causing prices on goods and properties to increase and as they did not comply with certain local customs. Apparently, however, in so far as there was tension, it had not been violent. A representative of a diaspora organisation in Mogadishu stated that most returnees were resourceful people who saw opportunities in the city; allegedly, i t would be extremely difficult to return to Mogadishu if one had nobody to rely on there. An international NGO referred to in the January 2013 report explained that people returning from the diaspora would need to make sure that they had the support from their family, i.e. a father, mother, brother, sister or uncle, as they could not count on their clan to support them. These sentiments were generally confirmed in the March 2014 report. An international NGO explained that persons from Mogadishu with relatives living in the city would be accommodated by their families. Support from the host community should also be considered. It was added that Somali families were extended families with even fourth and fifth cousins being counted in. Nevertheless, some people interviewed stated that there was increasing local resentment against the returning diaspora and heightened security concerns among the returnees. The report further quoted al-Shabaab commander Ali Mohamed Hussein who, in an announcement of 29 December 2013, had proclaimed that the returnees would be killed and fought against in the same manner that al-Shabaab used against the Somali government. Hussein also warned Somalis to stay away from government buildings, public venues frequented by government officials, and from foreign aid agencies and their workers, as they would all be targeted in the organisation’s attacks. B.     Swedish Migration Board 29.     The Swedish Migration Board carried out a fact-finding mission to Nairobi in October 2013 with the aim of updating information about the situation in Somalia. In its report The Security Situation in South and Central Somalia ( Säkerhetssituationen i södra och centrala Somalia ), dated 20 January 2014, it noted, inter alia , the following about areas not under the control of al-Shabaab (thus including Mogadishu): “The security situation is affected by the good supply of weapons, religious extremists and persons who could be labeled warlords but could also be clan leaders in combination with mafia-style organized criminality. They also have their own militias who rape, extort and set up illegal check points. In areas with a strong presence of AMISOM or the Ethiopian army, the situation regarding human rights is considerably better than in areas controlled by Al Shabaab. Although the SNAF is less arbitrary in their behavior than Al Shabaab it is still uncertain if the authorities such as the police and the courts are at all functioning. The forces are not paid in time, or not at all, and those who are in the forces are not always from the same clan as the locals. It can be questioned to what extent the SNAF is multi-clan. The discipline is bad and the SNAF-soldiers rob and rape civilians and are sometimes involved in shoot-outs among themselves. A rumour that you cooperate with Al Shabaab could be enough to be killed by someone on the government’s side of the conflict. [The Migration Board] was told examples from Mogadishu where the chain of command from the government to the police as well as within the police did not work, neither did the clan system. Solving these issues can be done with the help of influential people’s own militias. Other militias allied with the SFG [Somali Federal Government] in one way or another, are clan based. Those engaged in these militias regard this first and foremost as a job, and children, most over 15 years of age, are in the ranks. Recruitments to all militias has gone down during 2013.” A new fact-finding mission to Nairobi and Mogadishu was undertaken in October 2014 and, on 29 April 2015, the Migration Board issued an updated report with the same name, The Security Situation in South and Central Somalia . It contained the following information: “Al Shabaab is just outside the cities they have been driven out from and are able to infiltrate the cities, primarily at night, but also perform attacks in the cities. Even though Al Shabaab has had military setbacks, their presence in cities is still considerable for many people. It is difficult for the citizens to know who is a member of Al Shabaab and who is not, which makes it difficult for the locals to relate to Al Shabaab’s covert presence. SFG has influence in the areas Al Shabaab no longer control. However, the influence is quite frail and the cities are characterized by rivalry among different groups on site. At times, this has in some places led to heavy fighting, e.g. fighting between clan militias around Marka. The fact that Al Shabaab is driven out of a city does not mean that long-standing conflicts between local groups or in relation to SFG in Mogadishu are solved. There are many layers of the conflict, which might appear on clan level or between other groupings such as businessmen. There is reason to believe that even if attempts are made from SFG, with support from the international community, it is a very slow process before SFG in fact has established administrations and can exercise effective control over the territory in S/C Somalia. It is worth noting that SFG and SNAF need the support from AMISOM to be able to militarily hold the cities. As Al Shabaab still control the rural areas around the cities, some cities become isolated in the sense that it is not possible for SFG or representatives from the international community to get there by road. Some of these cities lack an airstrip.” 30.     Based on observations from the fact-finding mission in October 2013, the Migration Board, on 20 January 2014, issued the report Women in Somalia ( Kvinnor i Somalia ). It stated, inter alia , the following: “Within the Somali clan system a woman has to be represented by a man when decision is to be made within Xeer (customary law). It is always the man who decides for the woman. If there are no close male relatives, another older male relative can speak for and decide for the woman. A male network, meaning men who can speak for the woman within Xeer, cannot exactly be defined. It varies how closely related the woman and the man are, but also with the type of relationship they have. As a frame for what to consider as a male network one could besides the father and the husband also include paternal grandfathers, paternal uncles, brothers, sons and cousins on the father’s side provided they are adults and have a closer relationship with the woman than what could be the case with more distant relatives. The man also has to be in the same geographic location as the woman. [The Migration Board] assesses that a woman in lack of a male network, living with her diya-paying sub-clan, and who has been subjected to violence can be represented by a man in her diya-paying sub-clan in negotiations within Xeer. The probability that this will occur increases with each of the following factors; the diya-paying sub-clan is in their place of residence, the diya-paying sub-clan is not in minority at the place they reside, the diya-paying sub-clan is in a rural area. If the man who negotiates for the woman is not within the woman’s male network but is another man in the diya-paying sub-clan the risk increases that the negotiations are conducted in the interest of the diya-paying sub-clan rather than the woman’s. [The Migration Board] would like to stress that the above applies to cases where a woman without a male network lives with her sub-clan. If the woman lacks a male network and is in another place than her diya-paying sub-clan she will lack access to Xeer. It is reported that women are abused by different military forces, in this context meaning the SNAF, AMISOM and different clan militias. SNAF soldiers are responsible for many abuses but even AMISOM soldiers are a threat to women. It is reported from Mogadishu that AMISOM soldiers abuse women sexually. The woman is called into the base under the pretext she is going to get a job, e.g. as a cleaner, but [is] instead assigned to a specific man for sexual services. A woman who becomes pregnant is usually thrown out by her husband and will lose her older children to her husband. Her clan will in most cases not defend her in such a situation. There are women’s shelters in Mogadishu and Afgooye where a woman can stay for six months and where there is access to medical and psychosocial support. They have access to skills development with the aim that the women are able to support themselves. The women live community based in order to get a network that can provide some support and are if possible placed where there clan, but not their sub-clan, lives.” C.     United Kingdom Upper Tribunal and Home Office 31.     In MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) , a country guidance determination published on 20 October 2014, the United Kingdom Upper Tribunal addressed the current situation in Mogadishu. It heard three expert witnesses and had regard to oral and written submissions on behalf of three (male) appellants as well as a very substantial body of documentary evidence. It made the following assessment of the level of risk for “ordinary civilians”: “397.     Therefore, the key question to be addressed is whether the violent attacks that continue to be carried out by Al Shabaab in Mogadishu against carefully selected targets are at a level that means that there is for persons facing return to Mogadishu a risk of ill-treatment contrary to Article 3 of the [Convention] or a serious and individual threat to a civilian’s life or person by reason of the indiscriminate nature of those attacks carried out by Al Shabaab as they continue to prosecute their campaign against carefully selected targets in the city. As we have explained, the statistical information concerning casualty levels arising from those attacks is deficient and unreliable. Thus, our assessment must be made upon the evidence as a whole. 398.     Gone are the indiscriminate bombardments and military offences causing an unacceptable number of civilian casualties spoken of by the [European Court of Human Rights] in Sufi and Elmi . This has contributed to the reduction in population movement in and from Mogadishu that we accept is now being seen, with “huge” numbers of people returning to the city. Nor can it be said that the nature of the conflict is unpredictable. Given the careful selection of targets by Al Shabaab, their frequent announcements reported in the media explaining why those targets have been selected it is entirely predictable which areas of the city, and which establishments or compounds within them, represent a greater risk for citizens moving about the city. We do not suggest, though, that the location of all such attacks can be anticipated and so avoided, simply that certain obvious areas and establishments representing clearly enhanced risk of an Al Shabaab attack can be generally avoided. 399.     Drawing all of this together, and taking together all we have discussed, including: a.     the scale of returns to Mogadishu indicating that people who know the city well are “voting with their feet”; b.     the scale of inward investment and the “economic boom” indicating that individual entrepreneurs, as well as international agencies, consider investments to be appropriate; c.     the reduction in civilian casualties indicated by the imperfect statistical information; d.     the durability of the withdrawal from formal presence of Al Shabaab from the city; e.     the continued absence, generally, of the use of artillery or shelling within the city; f.     the transparently clear targeting strategy of Al Shabaab that does not include civilians, specifically, or diaspora returnees; g.     the opportunity to take some reasonable steps to reduce exposure to risk; h.     the absence of any risk of forced recruitment to Al Shabaab; and notwithstanding our acceptance of the continued level of violent attacks that are being carried out in Mogadishu by Al Shabaab, we conclude that, absent some aspect of a person’s profile making him of particular adverse interest to Al Shabaab or to the authorities as a possible supporter of Al Shabaab, there is not a general risk for a civilian, simply by being present in the city, of serious harm as a result of indiscriminate violence. Nor is it established that there are substantial grounds for believing that a person returning to Mogadishu would face a real risk of being subjected to treatment contrary to Article 3 of the [Convention].” 32.     On the basis of all the evidence before it, the Upper Tribunal gave the following country guidance: “... (ii)     Generally, a person who is “an ordinary civilian” (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 3 of the [Convention] or Article 15(c) of the [European Union] Qualification Directive. In particular, he will not be at real risk simply on account of having lived in a European location for a period of time [or] being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country. (iii)     There has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city. That was not the case at the time of the country guidance given by the Tribunal in [ AMM and others (conflict – humanitarian crisis – returnees – FGM) Somalia CG [2011] UKUT 00445 (IAC) , published on 28 November 2011]. (iv)     The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered as a whole that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab’s resort to asymmetrical warfare on carefully selected targets. The present level of casualties does not amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk. (v)     It is open to an ordinary citizen of Mogadishu to reduce further still his personal exposure to the risk of “collateral damage” in being caught up in an Al Shabaab attack that was not targeted at him by avoiding areas and establishments that are clearly identifiable as likely Al Shabaab targets, and it is not unreasonable for him to do so. (vi)     There is no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including for recent returnees from the West. (vii)     A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer. (viii)     The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assist with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members. (ix)     If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:      circumstances in Mogadishu before departure;      length of absence from Mogadishu;      family or clan associations to call upon in Mogadishu;      access to financial resources;      prospects of securing a livelihood, whether that be employment or self employment;      availability of remittances from abroad;      means of support during the time spent in the United Kingdom;      why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return. (x)     Put another way, it will be for the person facing return to explain why he would not be able to access the economic opportunities that have been produced by the economic boom, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away. (xi)     It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms. ...” 33.     In February 2015 the Home Office issued a Country Information and Guidance report entitled Somalia: Women Fearing Gender-Based Harm/Violence . In regard to south and central Somalia, including Mogadishu, the report stated, inter alia , the following: “There is generalised and widespread discrimination towards women in Somalia. Sexual and gender-based violence – including domestic violence, rape, sexual abuse, exploitation and trafficking – is widespread and committed with impunity by a range of actors including government security forces, members of armed opposition groups, militias, family and community actors and AMISOM peacekeepers. Internally Displaced Persons (IDP) women, especially those from minority clans, are particularly exposed to sexual and gender-based violence. ... Being female does not on its own establish a need for international protection. The general level of discrimination against women in Somalia does not in itself amount to persecution. However women who are without family/friend/clan connections or are without resources are in general likely to be at risk of sexual and gender based violence on return. Each case must be determined on its own facts. Factors to be taken into account include: access to family networks or clan protection and support, age, health, economic status, family responsibilities, connections with the diaspora (which can be material both in terms of income and ability to find work with reference to the diaspora driven economic upsurge) and other individual circumstances of the person.” 34.     As to whether there was effective protection for women, the report concluded: “Throughout south and central Somalia (including Mogadishu) there are structural weakness of the security services, including serious capacity and infrastructure gaps, logistical challenges, indiscipline, weak command and impunity for human rights abuses. This is alongside a largely non-functioning legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the widespread existence of corruption in state institutions. Moreover impunity for gender-based violence is widespread. Traditional laws, often used instead of weak state judiciary, discriminate against women and girls, and girls are often forced to marry the perpetrator. Prosecutions and convictions for rape and other forms of sexual violence are rare in Somalia, where survivors not only experience fear and shame in reporting such crimes, but at times face greater abuse and stigmatisation if they do report the attack. Somali police, rather than proactively investigate criminal complaints, often demand that victims of any crime do the legwork in the investigation, from locating witnesses to establishing who the suspects are. The inability and unwillingness of the Somali authorities to impartially investigate cases of sexual violence and bring perpetrators to justice leaves survivors further isolated. This means that, in general, a woman fearing sexual or gender based violence is unlikely to be able to access effective protection from the state.” D.     UNHCR 35.     On 17 January 2014 the UNHCR issued the report International Protection Considerations with Regard to People Fleeing Southern and Central Somalia as an interim update of its 2010 eligibility guidelines concerning asylum seekers from Somalia. On the security situation and its impact on civilians in Mogadishu and other areas under control of the Somali Federal Government, the UNHCR noted: “Mogadishu has been nominally under the control of government forces, supported by AMISOM, since August 2011. While the security situation in Mogadishu has improved since then, with a reduction of open conflict and signs of a resumption of economic activity in the city, Al-Shabaab retains the ability to stage lethal attacks even in the most heavily guarded parts of the city, with civilians reportedly bearing the brunt of its attacks. The SFG is reported to be failing to provide much of its population with basic security. Thus the reality on the ground, as reported by observers, remains that civilians are injured and killed every week in targeted attacks by gunmen, or attacks by IEDs and grenades. ... ... Even though there was less outright fighting in Mogadishu in 2013 compared to previous years, the toll of injured and dead civilians from grenade attacks and bombings reportedly went up in 2013. Observers consider that Al-Shabaab strikes have evolved, from the laying of roadside bombs intended to hit vehicles of passing government officials and AMISOM convoys, to ramming vehicles laden with explosives into security gates of buildings housing government institutions or international organizations, before gunmen with explosives strapped to their bodies storm the premises. In addition, targeted killings/assassinations are reported to have