Assessment of the Risk of Refoulement Under Article 3 ECHR in Cases of Persons Returning to Somalia (Daan Bes, et al. 2014)

In 2013 the European Court of Human Rights (ECtHR) communicated to the Dutch Government several complaints against the Netherlands of Somali applicants who claim that their expulsion to their country of origin would violate Article 3 of the European Convention of Human Rights (ECHR). In the context of these complaints the ECtHR referred questions to the Dutch Government on:

  • the general and individual risk of treatment in breach with Article 3 ECHR upon return to Mogadishu;
  • the risk of treatment in breach with Article 3 ECHR upon return to other parts of southern or central Somalia, including areas controlled by al‐Shabaab, or while travelling through those areas;
  • the existence of an internal flight alternative in Mogadishu or elsewhere in Somalia.

The Migration Law Clinic of the VU University Amsterdam conducted research on these questions resulting in this expert opinion, which addresses the following four topics:

1. Assessment of the Risk of Refoulement in Somalian Asylum Cases

This part deals with the criteria for risk assessment in Somalian cases. In particular it explains how the risk factors test, which was endorsed by the ECtHR in the case NA v UK, can be applied in the Somalian context.

2. The Internal Flight Alternative in the Context of Article 3 ECHR

This part explains the legal criteria for applying an internal flight alternative. It argues that national authorities are required under Article 3 ECHR to assess the risk of refoulement upon return to the region of origin first, before applying an internal flight alternative. Also it contends that the national authorities should specify the region which is considered an internal flight alternative in each individual case.

3. Internally displaced persons camps in the context of Article 3 ECHR

This part explains on the basis of which criteria the humanitarian situation in the camps for internally displaced persons (IDPs) in Somalia should be assessed in the light of Article 3 ECHR. It mentions the factors which make it likely that an individual will be compelled to live in an IDP camp upon return. Furthermore it specifically examines the situation of IDPs in Mogadishu.

4. Assessment of the Risk of Refoulement upon return to al‐Shabaab territory

This part examines returns to regions controlled by al‐Shabaab in the light of Article 3 ECHR. It argues that persons who return to Somalia from the Netherlands will have severe difficulties to comply with al‐ Shabaab. Furthermore it is contended that requiring a returnee to comply with the rules of al‐Shabaab rules would amount to inhuman or degrading treatment within the meaning of Article 3 ECHR.