ECtHR - K.A.B. v. Sweden, Application No. 886/11

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Country of Applicant: 
Somalia
Date of Decision: 
05-09-2013
Citation: 
Application No. 886/11
Court Name: 
Fifth Section; European Court of Human Rights
Headnote: 

On the basis of personal circumstances and improvements in the general security situation in Mogadishu, the Applicant would not be at risk of treatment contrary to Articles 2 or 3 ECHR if deported from Sweden to Somalia.

Facts: 

The Applicant, from Mogadishu (Somalia), sought asylum in Sweden in April 2009, allegedly to escape persecution by al-Shabaab, an Islamist group in Somalia. He claimed to have been persecuted for working with the American Friends Service Community from 1992 to 2005, including by way of threatening telephone calls telling him to stop spreading Christianity.

After five interviews with the Swedish Migration Board, and an oral hearing before the Swedish Migration Court, the Applicant's asylum claim was rejected, on grounds of vagueness and lack of credibility. While progressing through the appeal process without success, the Applicant obtained from the ECtHR an interim measure requesting the Swedish Government not to deport him to Somalia until further notice.

Before the ECtHR, the Applicant submitted that his return to Somalia would place him at a real risk of death or serious injury from al-Shabaab, contrary to Article 2 (right to life) and Article 3 (prohibition of torture and of inhuman or degrading treatment).

Decision & Reasoning: 

By a 5-2 Majority, the Chamber decided against the Applicant, both due to recent improvements in the security situation in Mogadishu, and due to the applicant's personal circumstances.

As to the former, the Chamber ruled that the situation had changed since Sufi and Elmi v. the United Kingdom (nos. 8319/07 and 11449/07, 28 June 2011). The general level of violence in Mogadishu had decreased and al-Shabaab was no longer in power. The Chamber relied on recent country reports from the Danish and Norwegian immigration authorities, which stated that there was no longer any front-line fighting or shelling and the number of civilian casualties had gone down. Despite continued unpredictability and fragility, the Chamber concluded that not everyone in Mogadishu faced a real risk of death or ill-treatment.

As to the Applicant's own situation, the Chamber shared the Swedish authorities' scepticism regarding the Applicant's claims of persecution. The Chamber cited credibility and vagueness issues concerning the Applicant's purported residence in Mogadishu prior to leaving Somalia in 2009, his employment with American Friends Service Community, and the four year delay after his employment ended before alleged threats were made. The Chamber also placed weight on the Applicant not belonging to a group targeted by al-Shabaab, and on his having a home in Mogadishu (where his wife lives).

The Court therefore concluded that Sweden would not violate Articles 2 or 3 by returning the Applicant to Somalia. However, the Court affirmed the existing Rule 39 interim measure preventing return until either the judgment becomes final, or there is a further decision after successful referral to the Grand Chamber.

Outcome: 

No violation of Articles 2 or 3 ECHR. Rule 39 Interim Measure maintained until judgment is final.

Observations/Comments: 

Judges Power-Forde and Zupancic give a dissenting judgment in which they cannot agree with the majority due to ‘a deficiency in its analysis and the prematurity of its conclusions regarding the general situation in Mogadishu’.

Case Law Cited: 

ECtHR - Hakizimana v. Sweden, Application No. 37913/05

ECtHR - Hilal v United Kingdom, Application no. 45276/99

Sweden - MIG 2011:4

Sweden - MIG 2009:27

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99

ECtHR - F.H. v Sweden (Application no. 32621/06)

ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81

ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05)

ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99

ECtHR - Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI

ECtHR - Chalal v. the United Kingdom, Application No. 1948/04

ECtHR - N. v. Finland, Application No. 38885/02

ECtHR - Kaboulov v. Ukraine, Application No. 41015/04
Other sources cited: 
  • Swedish Migration Board, legal position document (rättsligt ställningstagande)13 November 2012;
  • Swedish Migration Board Country Information Service (Lifos) report of 24 October 2012, “The Security Situation in Somalia”;
  • UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Somalia 5 May 2010;
  • Danish Immigration Service and the Norwegian Landinfo January 2013 joint report, “Update on security and human rights issues in South-Central Somalia, including Mogadishu”, based on fact‑finding mission to Nairobi in Kenya and Mogadishu in Somalia on 17 to 28 October 2012;
  • Danish Immigration Service and the Norwegian Landinfo report in May 2013 “Security and protection in Mogadishu and South-Central Somalia“, based on a fact-finding mission to Nairobi and Mogadishu from 16 April to 7 May 2013;
  • Human Rights Watch World Report 2013 - Somalia, 31 January 2013; United Kingdom Border and Immigration Agency’s “Operational Guidance Note on Somalia”, dated 15 December 2011
Authentic Language: 
English
State Party: 
Sweden
National / Other Legislative Provisions: 
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 12 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 12 Section 2
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 12 Section 18
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 12 Section 19
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 2
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 5 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 5 Section 6
Sweden - Government Bill 2004/05:170