Secretary of State for the Home Department v Said [2016] EWCA Civ 442

Case No C5/2015/1554[2016] EWCA Civ 442
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge King TD
DA003562013
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/05/2016
Before
The Rt Hon LORD JUSTICE CHRISTOPHER CLARKEThe Rt Hon LADY JUSTICE SHARPThe Rt Hon LORD JUSTICE BURNETT
Between
Secretary of State for the Home DepartmentAppellantAbdulkadir Ahmed SaidRespondent
Julie Anderson (instructed by Government Legal Department) for AppellantJames Collins (instructed by Messrs Duncan Lewis) for RespondentHearing Hearing dates: 19 April 2016
Judgment
[1]The issue for determination in this appeal is whether the Upper Tribunal (Immigration and Asylum Chamber) (“UTIAC”) was right to conclude that the deportation of the respondent, Mr Said (“AS”), to Somalia would violate his rights guaranteed by article 3 of the European Convention on Human Rights (“The Convention”).[2]AS is a national of Somalia, now aged 32, who has lived in the United Kingdom since about 1995. His mother and siblings also live in this country, the last sibling having arrived in 2003, as did his father who is now dead. He was granted indefinite leave to remain in July 2003. On 22 June 2009 AS was convicted at Blackfriars Crown Court of two counts of rape. He was sentenced to five years’ imprisonment and was subject to the automatic deportation provisions of the UK Borders Act 2007. Deportation proceedings were initiated to coincide with the end of the custodial element of his sentence. In due course, his appeal against the decision to deport came before the First-tier Tribunal (First-tier Tribunal Judge Blackford and Ms V Street (non-legal member)) (“the F-tT”) who heard evidence on 28 June 2013 and 18 October 2013. AS resisted deportation relying upon articles 3 and 8 of the ECHR. His appeal was dismissed by a determination promulgated on 9 December 2013.

The Appeal to UTIAC

[3]AS appealed with permission to UTIAC. The appeal came before Upper Tribunal Judge King TD who on 1 July 2014 promulgated his first determination which concluded that the F-tT had made an error of law in connection with its conclusion on Article 3, but not on Article 8. He reserved the redetermination of the article 3 issue to himself in UTIAC. Save as regards “vulnerability” of AS, as to which he envisaged that further medical evidence might be deployed, he preserved the findings of the F-tT. New country guidance relating to Somalia was awaited at that time. It was expected that the parties would develop their arguments at the redetermination hearing by reference to that new guidance. The guidance was promulgated on 10 September 2014: MOJ v Secretary of State for the Home Department [2014] UKUT 00442(IAC) (“Somalia CG”).[4]The judge’s conclusion that AS’s deportation would violate article 3 of the Convention is founded upon the proposition that he would be at risk of finding himself destitute and thus likely to end up in what is called an IDP camp, where the conditions would be very poor. “IDP” is an acronym for “internally displaced person” and an IDP camp is a makeshift refugee camp where many such people end up, at least temporarily.[5]Having reviewed the factual evidence, the judge accepted that AS can speak Somali. He asserted that his Somali was poor. The F-tT disbelieved him because Somali was his main language until he was 15, and he lived with his mother who did not speak English. It found that he had lied about this aspect of the evidence to try to bolster his appeal (under article 8). It also found that his immediate family members had deliberately exaggerated aspects of their evidence for the same purpose. He had been educated in England since he was 10 (i.e. when he arrived), and thus also speaks English. He had worked on and on and off in a number of different capacities and was physically healthy. AS had acquired qualifications in business and management before he went into prison, and studied maths and English whilst in prison, having done badly at school. Members if his family have a taxi business. The F-tT had found that he was capable of working; nowhere in the determination of UTIAC is there a finding to the contrary and it is not disputed before us that he has such a capacity. There is no reason why his family would not send him money were he to be returned to Somalia and he was in need of it. There are no close relatives in Somalia (he has lost contact with an Aunt) but he is from a majority clan. “It would be surprising indeed if the [respondent] were unable to access any substantial assistance particularly either from clan members [or] from a developing infrastructure of support.” The judge took account of an “economic boom” in Mogadishu which was more fully described in the Somalia CG. Having set out all these features of the case the judge continued:
“The real issue in this case, it seems to me, is the factor of [AS’s] mental health.”
[6]Before the F-tT AS’s mental health had been raised as a factor, but there was little evidence relating to it. He had given evidence which touched on a diagnosis of PTSD, that he had received treatment for it in prison and that he was on medication for a sleeping disorder. At paragraph 168 of its determination the F-tT said:
“As regards the Appellant’s illness we note the reference to post-traumatic stress disorder. We note the terms of the letter from Roxanne Timmies, the forensic mental health practitioner and her conclusion that although the Appellant continues to report symptoms of post-traumatic stress disorder and depression, it is difficult to ascertain whether some of this could be in the context of his ongoing immigration issues. This aspect of the Appellant’s case was not pressed at the hearing and we do not regard it as having a substantial impact on the issues before us.”
[7]The judge had additional written medical evidence before him. A report prepared in May 2011 in connection with AS’s release from prison in June that year noted he was on anti-depressants, with a diagnosis of PTSD and depression. There was a psychiatric report dated 3 October 2014 which confirmed that AS developed symptoms of PTSD and depression whilst in prison for which he was prescribed anti-depressants. By some time in 2013, he was in regular contact with community psychiatric services. He continued to suffer from depression although he had responded to medication. Another report from December 2013 noted that AS denied suicidal ideation. There was an up to date psychological report prepared for the UTIAC appeal dated 29 October 2014. PTSD was again confirmed, together with anxiety and a major depressive disorder. That is a diagnostic term which requires the presence of a number of symptoms which collectively “cause clinically significant distress or impairment in social, occupational or other important areas of functioning” (see DSM –5, Criteria for Major Depressive Disorder). AS is reported to have “denied having active plans to harm himself due to his family but did not know how he would cope were he deported to Somalia and would be likely to commit suicide without the support of his family”. AS reported that his “emotional health” problems made it difficult for him to cope. He said he rarely left home, felt isolated and avoided social activities. The report recommended continued treatment (AS was on Setraline, a common anti-depressant).[8]The judge noted that AS relied upon his extended family in the United Kingdom for support and is being supported by professionals. He continued, “67. … If he were put in a strange environment without such support would potentially make his condition worse rather than better. The relevance of his mental health being his general ability to adjust to change and to a new environment and more particularly his ability to manage his own affairs and accommodation, hold down a job and generally cope. Suffering from severe depression as is the evidence would be an important factor in that consideration as to whether or not the appellant could function as an economic entity if returned… 69 …There are few health centres in the county. An issue arises whether a returnee with mental health problems would be able to access appropriate treatment. … 71. Essentially the real issue said to distinguish the case of the appellant is whether or not by reason of his mental difficulties, he falls within the vulnerable category of individual that would in reality have little prospect of securing access to a livelihood on return. He would find it difficult to make his way in the society in the absence of family or social support.”[9]The judge concluded from reading “the reports as a whole that there is little indication that his symptoms have been exaggerated to the medical practitioners who have dealt with him”. He recorded at para 77 that the psychiatrist who prepared the report for the UTIAC appeal “ … perhaps ventures somewhat inexpertly to areas of credibility and country conditions and is of the opinion that because of his mental health difficulties the appellant would not be unable to cope with the stress of living in a tense and unstable environment filled with constant reminders of his past traumas.”[10]The “not” is clearly a typographical error. The statements outside the psychiatrist’s expertise include those which suggest a tense and unstable environment in Mogadishu. The current situation in Mogadishu should be taken from the Somalia CG. She also suggested that AS would be unable to receive the treatment he needed in Somalia. She prefaced that observation with the statement “although I am not an expert in mental services in Somalia” and then quoted from a number of very old reports which predated the stabilisation, cessation of hostilities and improvements in Somalia which had formed the basis of the new Somalia CG. I appreciate that the psychologist was attempting to be helpful but, with respect, this part of her evidence is of no value and demonstrates the dangers of experts stepping into fields outside their expertise and becoming advocates. The judge’s conclusion followed:
“79. I remind myself that my focus is and should remain upon Article 3 … and that there is for every appellant a high threshold to meet in that connection. Nevertheless, I do find, having considered the medical evidence as a whole, that his severe depression and mental difficulties will as a matter of commonsense materially affect his ability to function as an individual, particularly one within a social context. 80. I find that that factor should be taken with a lack of family or social support; with a lack of familiarity with customs and traditions in Somalia and the absence of any practical family or sibling support. I find those matters in combination with one another are such as to render the appellant to be properly considered vulnerable with the terms of [the Somalia CG] such that there is a reasonable likelihood that he would end up in an [Internally Displaced Persons’] camp not being able to look after himself or to survive economically in those circumstances.”
[11]Miss Anderson for the Secretary of State submits that on no view of the evidence in this case, nor even upon the findings made by the judge and the F-tT, could AS establish that his removal would breach his article 3 rights having regard to the very high threshold established by the authorities. Mr Collins on behalf of AS submits that the judge was entitled to conclude that if returned to Somalia there was a likelihood that he would end up in an IDP camp and that, on the basis of the Somalia CG, the conclusion that removal would violate article 3 necessarily followed.

The Article 3 Jurisprudence

[12]The law relating to the reach of article 3 in preventing removal of foreign nationals from the United Kingdom is well settled. It was most recently reviewed in this court by Laws LJ in GS (India) v. Secretary of State for the Home Department [2014] EWCA Civ 40; [2015] 1 WLR 3312 with whom Sullivan LJ agreed on this aspect. Underhill LJ agreed expressly with Laws LJ’s analysis of the Strasbourg authorities of MSS v Belgium & Greece 53 EHRR 28, Sufi and Elmi v United Kingdom 54 EHRR 209, SHH v United Kingdom (2013) 57 EHRR 531 and Tarakhel v Switzerland App No 29217/12 between paras 54 and 62 of his judgment. I shall return shortly to these cases.[13]The GS case concerned a number of appellants whose removal was resisted on medical grounds. Permission to appeal had been given in six cases of illegal entrants, rather than “health tourists”. The House of Lords had held in N v Secretary of State for the Home Department [2005] 2 AC 296 that article 3 of the Convention did not oblige a contracting state to provide aliens indefinitely with medical treatment which was unavailable in their home countries, even if the absence of such treatment on return would significantly shorten their lives. It concluded that article 3 could be extended to prevent removal only in very exceptional circumstances. That was where the present state of health of the person who was subject to expulsion was such that, on compelling humanitarian grounds, he ought not to be expelled unless it could be shown that the medical and social facilities were available to him in the receiving state to prevent acute suffering while he was dying. Despite N’s condition (AIDS for which she would be unlikely to obtain suitable treatment or family support in Uganda) she was not in a condition where article 3 would prevent her removal.[14]The House of Lords considered the decision of the Strasbourg Court in D v United Kingdom (1997) 24 EHRR 423 where the proposed removal of a man to St Kitts was held to violate article 3. In N v United Kingdom 47 EHRR 885, which followed the House of Lords’ decision, the Strasbourg Court itself summarised why exceptionally that was so. The very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him even a basic level of food, shelter or social support: para [42]. It narrowly circumscribed the circumstances in which the principle in the D case would apply to an expulsion case of someone who was suffering from a life-threatening illness. Its overall conclusions are found in paras 42 to 45 of the judgment. In short: i) Those subject to expulsion are not entitled to remain to continue to benefit from medical, social or other forms of assistance provided by the expelling state. The fact that he would find himself in reduced circumstances, or with reduced life expectancy, does not of itself give rise to breach of article 3; ii) The decision to remove someone suffering from a serious physical or mental illness to inferior facilities in the receiving country would give rise to a violation of article 3 only in a very exceptional case, where the humanitarian grounds against removal are very compelling; iii) The circumstances of D’s case provided such exceptional and compelling circumstances. iv) There may other exceptional cases but the high threshold should be maintained because “the alleged future harm would emanate not from the intentional acts or omissions of public bodies or non-state bodies, but instead from the a naturally occurring illness and the lack of sufficient resources to deal with it; v) The Convention is essentially concerned with civil and political rights. There is no obligation to alleviate disparities in the availability of treatment across the world through the provision of free and unlimited medical treatment; vi) These principles apply to the expulsion of any person with a serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised treatment not available in the receiving state.[15]The significance of point (iv) in the summary is that the paradigm case, as Laws LJ described it at para 39 of the GS case, in which article 3 prevents removal involves the necessary risk of being subject to an intentional act which constitutes torture, or inhuman or degrading treatment. Medical cases, and I would add cases where the complaint is that someone returned would be destitute on arrival, do not fall within that paradigm. Laws LJ reviewed the decisions of the Strasbourg Court in the case of MSS, Sufi and Elmi, SHH and Tarakhel which, in addition to the medical exception narrowly defined in the D and N cases, illuminate the limited circumstances in which it is appropriate to depart from that paradigm in article 3 cases.[16]In the MSS case the Strasbourg Court decided that Belgium would violate the article 3 rights of MSS, an Afghan asylum seeker, were he to be returned to Greece under the Dublin Convention. That was because of the dire conditions in which he would live in Greece whilst his claim was considered. Responsibility for those conditions rested with the Greek state. In Sufi and Elmi the applicants were Somali nationals who had committed criminal offences in this country. The Secretary of State proposed to deport them. At para 282 of its judgment the court said:
“If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or the state’s lack of resources to deal with a naturally occurring phenomenon, such as drought, the test in N v United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct or indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab’s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between one-third and one-half of all Somalis are living in a situation of serious deprivation.”
Al-Shabaab is an Islamist terrorist organisation. The state of affairs described in this extract from the judgment is precisely what has since improved; and it is the improvements which are reflected in the Somalia CG. But on the basis of the evidence as to the conflict at the time of the Sufi and Elmi the Strasbourg Court decided that the circumstances it had described meant that the approach in MSS, rather than N, should be followed.[17]In para 57 of the GS case, Laws LJ described this as a “fork in the road, on the court’s own approach” between the two different types of case. He then referred to SHH v United Kingdom, concerning a severely disabled Afghan applicant, who sought to rely upon the MSS approach, but failed. His problems on return would result from inadequate social provision and want of resources. The approach in the N case was the correct one. Finally, he considered Tarakhel which was another case about returning asylum seekers under the Dublin Convention, this time to Italy, where there were said to be systemic deficiencies in reception conditions which were the responsibility of the Italian state. The MSS approach was applied.[18]These cases demonstrate that to succeed in resisting removal on article 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in para 282 of Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases.

The Circumstances of AS judged by the Article 3 Jurisprudence

[19]In my judgment, the circumstances of AS fall far short of being able to satisfy that approach. The highest at which his case can be put is that his PTSD and depression will make it difficult for him integrate back into life in Somalia and have some impact on his ability to work. There is no suggestion that he is precluded from working and much to support the finding that he will be able to do so. It is also clear that, to the extent that it may be necessary, there is every reason to suppose that he will be provided with financial aid by his large and supportive family in the United Kingdom, quite apart from the prospect of some assistance from his clan. There is no evidence to suggest that he will be unable to receive the relatively commonplace medical treatment he currently enjoys if returned to Mogadishu. It is clear that this combination of features is so far removed from the nature of exceptional and compelling circumstances envisaged in the Strasbourg cases as to make it clear that AS’s deportation would not breach article 3 of the Convention.

The Somalia CG

[20]Mr Collins submits that the Somali CG, which the judge was obliged to apply, dictates a different outcome because, whatever the Strasbourg cases suggest, for domestic purposes a finding that a returnee might through economic deprivation end up in an IDP camp is sufficient to scale the article 3 threshold.[21]By para 1, the scope of the Somalia CG was limited to the following issues:
“Whether the current situation in Mogadishu is such as to entitle nationals of Somalia whose home area is Mogadishu or whose proposed area of relocation is Mogadishu to succeed in their claims for refugee status, humanitarian protection status under Article 15(c) or protection against refoulement under Articles 2 or 3 ECHR solely on the basis that they are civilians and do not have powerful actors in a position to afford them adequate protection.”
The reference to article 15(c) is to the Qualification Directive 2004/83, which is concerned with risks which flow from indiscriminate violence from armed groups. That is no longer a general problem in Mogadishu and, in any event, AS is excluded from the protection of article 15 because of his serious offending, just as he is excluded from the protection of the Refugee Convention. In his case he can rely only upon his Convention rights. In para 30 of the Somalia CG UTIAC set out article 15. Article 15(b) is in terms materially the same as article 3 of the Convention. Article 15(a) is concerned with the death penalty. Persons qualify for “subsidiary protection”, which in domestic parlance under the Immigration Rules is called “humanitarian protection”, if they satisfy any of the sub-paragraphs of article 15. UTIAC considered it unnecessary to set out the law relating to article 3 because it is “well-established”, “except to highlight that [UTIAC has] recognised that if the level of violence in a country or area of a country reaches an exceptionally high level, that could mean anyone being required to return there could face a real risk of serious harm, irrespective of their individual circumstances. It remained the case that individuals could also succeed on Article 3 grounds by showing they faced particular harms personal to them or a combination of general and personal dangers.” Para 34.[22]There followed a summary of the case law relating to Somalia (paras 35 to 43) and an extensive review of the evidence about the then current circumstances in Mogadishu (paras 44 to 201). The submissions of the parties were summarised between paras 202 and 332.[23]In its conclusions, which commence at para 333, UTIAC found that there was no longer any inter-clan violence; that was no longer a risk factor. Clan membership was relevant to the assistance that a returnee might obtain on arrival. UTIAC dealt with the economic boon in Mogadishu, sufficiency of protection, the threat from Al Shabaab, the level of weapons related civilian casualties and a number of subsidiary issues. Its conclusions on all these matters enabled UTIAC to provide its findings on the current level of risk. In the absence of personal characteristics which might attract an attack from Al Shabaab, or from the authorities if they believed the person to be an Al Shabaab supporter, there was no general risk for a civilian from indiscriminate violence, nor that such a person would be at risk of treatment contrary to article 3 of the Convention, para 399. At para 403 UTIAC confirmed that it rejected the view that Mogadishu poses a “general risk” of indiscriminate violence from armed conflict for the purposes of article 15(c) of the Qualification Directive.[24]UTIAC then endorsed the views of the UNHCR in what it described as a report published on 25 September 2013 as “an appropriate starting point today, upon which to build in the light of our review of the up to date evidence.” The document from which it quotes was a response for a request for guidance on the “internal flight or relocation alternative particularly in respect of Mogadishu.” This concerns questions under the Refugee Convention where the applicant can show a qualifying risk of persecution in his home area, but it is said that he can return to a different part of his country of origin where he would be free from such risk. The UNHCR’s focus of responsibility is on refugee claims where it promotes the test that nobody should be expected to relocate unless it is reasonable to expect him to do so. In that context, its advice was that such alternatives would not be appropriate for: “unaccompanied children or adolescents at risk of forced recruitment and other grave violations; young males at risk of being considered Al Shabaab sympathizers and therefore facing harassment from government security forces; elderly people, people with physical or mental disabilities; single women and single heads of households with no male protection and especially originating from minority clans. In any other exceptional cases, in which the application of an IFA/IRA in Mogadishu is considered even in the absence of meaningful family or clan support to the individual, the person would need to have access to infrastructure and livelihood opportunities and to other meaningful protection and support mechanisms, taking into account the state institutions’ limited ability to provide security and meaningful protection.” (para 406)[25]Immediately following this quotation, UTIAC sets outs its country guidance, para 407, which was quoted extensively by the judge and relied upon by AS. The immediate context of the guidance is the summary of the evidence and the UNHCR views on internal relocation, seen in the light of the limited scope referred to in para 1. “407. Distilled to its essence, and on the basis of all the evidence before us, we give the following country guidance:a. 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 15(c) of the Qualification Directive or Article 3 of the ECHR. In particular, he will not be at real risk simply on account of having lived in a European location for a period of time of 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.b. 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.c. 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.d. 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 be expected to do so.e. There is no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including recent returnees from the West.f. 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.g. The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assistance 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.h. 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:(i) circumstances in Mogadishu before departure;(ii) length of absence from Mogadishu;(iii) family or clan associations to call upon in Mogadishu;(iv) access to financial resources;(v) prospects of securing a livelihood, whether that be employment or self-employment;(vi) availability of remittances from abroad;(vii) means of support during the time spent in the United Kingdom;(viii) why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return. Put another way, it will be for the person facing return to Mogadishu 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. 408. 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.”[26]Paragraph 407(a) to (e) are directed to the issue that arises under article 15(c) of the Qualification Directive. Sub-paragraphs (f) and (g) establish the role of clan membership in today’s Mogadishu, and the current absence of risk from belonging to a minority clan. Sub-paragraph (h) and paragraph 408 are concerned, in broad terms, with the ability of a returning Somali national to support himself. The conclusion at the end of paragraph 408 raises the possibility of a person’s circumstances felling below what “is acceptable in humanitarian protection terms.” It is, with respect, unclear whether that is a reference back to the definition of “humanitarian protection” arising from article 15 of the Qualification Directive. These factors do not go to inform any question under article 15(c). Nor does it chime with article 15(b), which draws on the language of article 3 of the Convention, because the fact that a person might be returned to very deprived living conditions, could not (save in extreme cases) lead to a conclusion that removal would violate article 3.[27]The Luxembourg Court considered article 15 of the Qualification Directive in Elgafaji v Staatssecretaris van Justitie [2009] 1 WLR 2100 and in particular whether article 15(c) provided protection beyond that afforded by article 3 of the Convention. The answer was yes, but in passing it confirmed that article 15(b) was a restatement of article 3. At para [28] it said:
“In that regard, while the fundamental right guaranteed under Article 3 of the ECHR forms part of the general principles of Community law, observance of which is ensured by the Court, and while the case-law of the European Court of Human Rights is taken into consideration in interpreting the scope of that right in the Community legal order, it is, however, Article 15(b) of the Directive which corresponds, in essence, to Article 3 of the ECHR. By contrast, Article 15(c) of the Directive is a provision, the content of which is different from that of Article 3 of the ECHR, and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the ECHR.”
[28]In view of the reference in the paragraph immediately preceding para 407 to the UNHCR evidence, the factors in paras 407(h) and 408 are likely to have been introduced in connection with internal flight or internal relocation arguments, which was a factor identified in para 1 setting out the scope of the issues before UTIAC. Whilst they may have some relevance in a search for whether a removal to Somalia would give rise to a violation of article 3 of the Convention, they cannot be understood as a surrogate for an examination of the circumstances to determine whether such a breach would occur. I am unable to accept that if a Somali national were able to bring himself within the rubric of para 408, he would have established that his removal to Somalia would breach article 3 of the Convention. Such an approach would be inconsistent with the domestic and Convention jurisprudence which at para 34 UTIAC expressly understood itself to be following.[29]Having set out its guidance, UTIAC then turned to consider IDPs, about which each of the experts had given some evidence. It recognised that the label was problematic because there were individuals who are considered as internally displaced persons who have settled in a new part of Somalia in “a reasonable standard of accommodation” and with access to food, remittances from abroad or an independent livelihood. UTIAC considered that the position would be different for someone obliged to live in an IDP camp, the conditions of some of which “are appalling”, para 411. It continued by quoting from evidence of armed attacks on IDP camps, of sexual and other gender based violence and the forcible recruitment of internally displaced children into violence, albeit that it did not accept the evidence it quoted. UTIAC also mentioned overcrowding, poor health conditions and (ironically) that the economic improvements in Mogadishu were leading to evictions from IDP camps in urban centres with vulnerable victims being unable to seek refuge elsewhere.[30]It is immediately apparent that the discussion of this evidence, which is culled from expert reports, understandably touches on concerns about violence, which in article 3 terms would be analysed by reference to the approach in the MSS and Sufi and Elmi cases, and aspects of destitution, which would be analysed by reference to the approach in the N and D cases. The conflation continues in para 412:
“Given what we have seen, and described above, about the extremely harsh living conditions, and the risk of being subjected to a range of human rights abuses, such a person is likely to be found to be living at a level that falls below acceptable humanitarian standards.”
Having further discussed the contradictory evidence about how many people lived in IDP camps, UTIAC concluded that “many thousands of people are reduced to living in circumstances of destitution” albeit that there was no reliable figure of how many people lived in such destitution in IDP camps. The determination continued:
“420. Whilst it is likely that those who do find themselves living in inadequate makeshift accommodation in an IDP camp will be experiencing adverse living conditions such as to engage the protection of article 3 of the ECHR, we do not see that it gives rise to an enhanced Article 15(c) risk since there is an insufficient nexus with the indiscriminate violence which, in any event, we have found to be not at such a high level that all civilians face a real risk of suffering serious harm. Nor does the evidence support the claim that there is an enhanced risk of forced recruitment to Al Shabaab for those in the IDP camps or that such a person is more likely to be caught up in an Al Shabaab attack… 421. Other than for those with no alternative to living in makeshift accommodation in an IDP camp, the humanitarian position in Mogadishu has continued to improve since the country guidance in AMM was published. The famine is confined to history … The “economic boom” has generated more opportunity for employment and … self-employment. For many returnees remittances will be important. … 422. The fact that we have rejected the view that there is a real risk of persecution or serious harm or ill treatment to civilians or returnees in Mogadishu does not mean that no Somali national can succeed in a refugee or humanitarian protection or article 3 claim. Each case will fall to be decided on its own facts. As we have observed, there will need to be a careful assessment of all the circumstances of a particular individual.”
[31]I entirely accept that some of the observations made in the course of the discussion of IDP camps may be taken to suggest that if a returning Somali national can show that he is likely to end up having to establish himself in an IDP camp, that would be sufficient to engage the protection of article 3. Yet such a stark proposition of cause and effect would be inconsistent with the article 3 jurisprudence of the Strasbourg Court and binding authority of the domestic courts. In my judgment the position is accurately stated in para 422. That draws a proper distinction between humanitarian protection and article 3 and recognises that the individual circumstances of the person concerned must be considered. An appeal to article 3 which suggests that the person concerned would face impoverished conditions of living on removal to Somalia should, as the Strasbourg Court indicated in Sufi and Elmi at para 292, be viewed by reference to the test in the N case. Impoverished conditions which were the direct result of violent activities may be viewed differently as would cases where the risk suggested is of direct violence itself.

Conclusion

[32]In para 19 above, I have expressed my conclusion that AS’s circumstances are not such as could preclude his removal to Somalia on article 3 grounds. I should add that I also accept the submission advanced by Miss Anderson that the evidence could not, in any event, support a finding of fact that AS would find himself living in an IDP camp. The prospect of employment, some clan support and the availability of remittances suggests that, despite his depression and PTSD, AS would have the financial wherewithal to establish himself in Mogadishu.[33]In view of these conclusions, it is unnecessary to consider a subsidiary argument advance by Miss Anderson, namely that the judge erred in deciding that the F-tT had made an error of law. I would allow the appeal and quash the decision of UTIAC. Although Mr Collins submits that the matter should be remitted to UTIAC for further consideration, the position on the facts is so clear that there would be no purpose in doing so. I would substitute an order dismissing AS’s underlying appeal from the F-tT.[34]I agree.[35]I also agree.

Cited in 8 later judgments