Sweden – Migration Court of Appeal, 21 April 2011, UM 7851-10
Country of Decision:
Country of Applicant:
Date of Decision:
21-04-2011
Citation:
UM 7851-10
Court Name:
The Migration Court of Appeal / Migrationsöverdomstolen
Keywords:
Relevant Legislative Provisions:
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 7 > Art 7.2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 7
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 8
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 7
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 8
National / Other Legislative Provisions:
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 3
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 3
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Headnote:
The case concerned a Somali woman who was granted refugee status on the grounds that she faced a risk of gender-related persecution on return. The applicant's male relatives threatened to kill her as she had given birth to an illegitimate child. The Migration Court of Appeal found that there was no internal protection alternative available to the applicant.
Facts:
The applicant applied for asylum in Sweden in September 2009. The applicant was born and raised in the Kismayo area in Somalia and gave birth to an illegitimate child in 2002. The father of the child left the applicant when he learned she was pregnant. The applicant's parents are divorced and her father had two sons from another marriage. The family belongs to the Ashraf clan, which is known for its great piety. When the applicant's half-brother found out that the applicant had given birth to an illegitimate child, he tried to kill her with a knife and stabbed her in the neck and leg. With the help of neighbours, the applicant was taken to her aunt in Bureo (Somaliland). Her aunt and uncle tried to get their male relatives to refrain from punishing the applicant, but they refused. Several male relatives believed that the applicant had committed a crime against Sharia law, that she brought shame to the family and that she should be stoned to death. The applicant left Bureo shortly after and settled in a village outside Kismayo. In 2009, she was told that relatives were looking for her with the help of Al Shabaab in the Kismayo area. In order to force her aunt in Kismayo to tell them where the applicant was, the aunt's daughter was arrested. Her aunt then helped the applicant to leave the country.
Decision & Reasoning:
The Migration Board rejected the applicant's asylum application because they felt that she had not shown it likely that she risked persecution or any other protection-qualifying treatment on return to Somalia. They believed that the applicant's account was unclear, particularly as regards the places she stayed at, and that it did not appear credible that her relatives had not come looking for her in Kismayo until 2009. The Migration Board claimed that the threats against the applicant were based on second-hand information.
The Migration Court rejected the applicant's appeal. The court did not question that the applicant had given birth to a child outside wedlock, and that in connection with this she had been stabbed by her half brother and that she had then left Somaliland. However, the Court emphasised that nothing special happened to her after she left Somaliland in 2002 and that the information that she was sought after in Kismayo in 2009 was second-hand information. The Court did not believe that the applicant provided any reasonable explanation for why it took until 2009 before her step-brothers searched for her in Kismayo, although they already knew in 2002 that she had an aunt there. Therefore, the Migration Court found that the applicant had not shown it to be plausible that there was still a real and current threat against her.
Before the Migration Court of Appeal, the applicant claimed she was credible because she had consistently given the same account and she had stuck to the facts that the Migration Board and the Migration Court had called into question. The fact that her male relatives did not look for her in Kismayo until 2009 was because she had kept herself hidden, and that it was only in 2009 that her step brothers got help from Al Shabaab. The applicant believed that there was no reasonable internal protection alternative for her, since even her aunt and her family were victims of retaliation by Al Shabaab.
During the oral hearing, the applicant stated that her daughter was also at risk of being killed for reasons of 'honour'. She clarified that it was not possible for her to obtain first-hand information because it would have threatened her life to meet the relatives who were looking for her. The Migration Board said that the applicant's clan affiliation and residence had not been established and that her asylum claim should therefore be assessed against the whole of Somalia. The Migration Board argued that the applicant could stay in Somaliland since the situation there was deemed to be stable and there were no severe conflicts.
The Migration Court of Appeal believed that the applicant had shown that her background, clan affiliation and residence were plausible. The risk assessment was therefore made against the Kismayo area, where the Migration Court of Appeal in an earlier ruling had held that internal armed conflict prevailed. For this reason the applicant should therefore be considered as qualifying for subsidiary protection, providing she was unable to find internal protection elsewhere in the country.
The Migration Court of Appeal believed that the applicant's account had essentially been consistent and unchanged throughout the proceedings. The applicant's account at the hearing gave the impression of being genuine. The Migration Court therefore accepted the applicant's account as credible and likely.
Since the applicant had shown it probable that she would on return to Kismayo be vulnerable to abuse from male relatives, in collaboration with Al Shabaab, because as a woman had not followed the norms that prevailed, and since the applicant's possibilities of obtaining effective protection in this area were virtually nonexistent, she had the right to protection as a refugee on the basis of her gender. However, this presumed that she could not obtain protection in any other part of Somalia.
In one of the Migration Court of Appeal’s earlier rulings the security situation in Somaliland and Puntland was found to be at an acceptable level and that it was therefore possible for asylum seekers without individual protection grounds to return there. The applicant has a link with Somaliland, but just to her male network from which she is in need of protection and where the authorities had already shown they were unwilling to give her protection. It was therefore not possible for the applicant to seek refuge in Somaliland. Since the applicant had no connection with Puntland, there was no internal protection available there.
Outcome:
The Migration Court of Appeal quashed the Migration Court’s ruling and granted the applicant permanent residence and refugee status.
Other sources cited:
Case Law Cited:
Sweden - MIG 2007:12
Sweden - MIG 2007:9
Sweden - MIG 2008:39
Sweden - MIG 2011:4
