Update on Subsidiary Protection and Somali Claims

Last week we attended a very instructive training on recent developments on Subsidiary Protection (Article 15(c) of the Qualification Directive) and Article 3 of the European Convention of Human Rights (ECHR). The training was part of a series of masterclasses  by the Irish Refugee Council. 

Colm O'Dwyer BL took the morning session providing a helpful overview of recent developments in Ireland. Ronan Toal, a barrister at Garden Court Chambers in the UK, then shared his specialist knowledge and expertise in the application of subsidiary protection and Article 3 to Somali claims in particular.

A number of recent cases were discussed in the course of the training. Of particular interest was the most recent reported UK case dated 28^th November 2011 that considers the situation in southern and central Somalia and claims for protection: AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG. Following the decision of the Grand Chamber of the European Court of Human Rights in Sufi & Elmi v the United Kingdom [2011] ECHR 1045, AMM and others provides extensive further country guidance for southern and central Somalia. It is the first reported case in the UK to have found that there was a risk of serious harm to the claimant within the meaning of Article 15(c) in circumstances where there was no such risk arising under Article 15(b) or Article 3 ECHR. Essentially the Court held that a claim for subsidiary protection under Article 15(c) could be made out even in circumstances where there was no breach of Article 3 ECHR.

Ronan Toal also drew attention in the training to the findings in the decision in AMM and Others in relation to a claim under the Refugee Convention. The Court held that a claim for protection on grounds of religious persecution could be made out under the Refugee Convention where an individual was not in a position to comply with the strict al Shabaab religious rules.

These recent developments have implications for Somali asylum applicants who have previously been refused asylum. In light of the dire security and humanitarian situation in southern and central Somalia, a claim for subsidiary protection may be made out. Our own experience is that there continue to be lengthy delays in the Department of Justice determining. Furthermore, applicants for subsidiary protection may now be in a position to submit a new claim for asylum, particularly if they have been out of Somalia for a long period and are in a position to show difficulties they would have conforming with the strict al Shabaab regime.

Brophy Solicitors

23.01.12

CRISIS IN EAST AFRICA

Last week we met with a young Somali client who told us that six members of her family, including her mother and five young siblings, have recently arrived in Dadaab refugee camp in northern Kenya. Our client explained the dire situation of insecurity, violence and malnourishment her family had fled from in Somalia and the ongoing challenge to survive even in the relative safety of the camp. She had not heard from her family for over three years until she located them in Dadaab.

This disturbing story has brought home the widespread suffering arising from the crisis in East Africa. We have all seen arresting images over recent days and the famine appeal donations are fortunately well under way.

What is often not considered despite the striking images of vast refugee camps is the so-called ‘refugee burden’. The reality is that the refugee population in the developing world is far greater than that in the developed world. It is countries like Kenya that are hosting huge numbers of desperate refugees relative to the small numbers that come to countries like Ireland (in 2010, we were hosting a total of around 9,000 refugees while Kenya was hosting over 400,000). There are often worrying misperceptions about the numbers of refugees arriving in Ireland and other European countries. In June 2011, UNHCR estimated that four fifths of the world’s refugees are being hosted by developing countries, such as Kenya and Pakistan.

For our own client, she has now been residing in Ireland for over three years, waiting for a decision on her case. As a young lone female Somali, we would argue that there is currently no prospect of her returning safely to her country, particularly in light of the recent decision of the ECJ in Sufi & Elmi v UK. Unfortunately, it is likely our client will wait several more years for a decision from the Department of Justice and this may be a negative decision. In the meantime, she must try to support and stay in contact with her family and hope for a more secure future for them all. While this client has been waiting three years, at lease one of our Somali clients has been waiting since mid 2005 for a determination of her application for family reunification. We would call on the Minister to prioritise Somali cases given the desperate humanitarian situation and the dire impact of these delays on applicants and their families.  

Brophy Solicitors

18.08.11