PROCEDURE

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.

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.

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.

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.

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).

The applicants and the Government each filed observations on the admissibility and merits of the case (Rule 59 § 1).

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.

The applicants and the Government each filed further observations in October 2010.

The Chamber decided to join the applications (Rule 42 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The facts of the case, as submitted by the applicants, may be summarised as follows.

A. The first applicant

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.