FOURTH SECTION
DECISION
Application no. 3192/06
Abukar SHEIKH HUSSEIN against the United Kingdom
and 16 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 26 June 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above applications,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. Each of the applicants has complained to the Court that his or her removal to Mogadishu would violate Articles 2 and/or 3 of the Convention. However, they either did not ask for, or were not granted, interim measures under Rule 39 of the Rules of Court.
4. On 28 June 2011 the Court gave its judgment in Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, 28 June 2011, in which it gave detailed guidance on the compatibility of the removal of Somali nationals to Mogadishu with the respondent State’s obligations under Articles 2 and 3 of the Convention.
5. On 10 February 2012 the Government wrote to the Court setting out the following proposals as regards applicants in respect of whom Rule 39 measures had been applied:
“Cases pending before the Court
The Government consider that where an application challenging removal to Somalia (but not Somaliland or Puntland) is pending before the Court it would be appropriate to consider whether the reasoning of the Court in the Sufi and Elmi judgment, together with a more recent country guidance case in the Immigration and Asylum Tribunal (AMM & Others) (Conflict; Humanitarian Crisis; Returnees; FGM) Somalia CG[2011] UKUT 445 (IAC) (28 November 2011)) have any impact on the decision to remove that individual. In light of the significant numbers of such cases pending before the Court, the Government propose that the following procedure be put in place to accomplish this.
The Court would inform the applicants contesting removal to Somalia and in respect of whom the Court has previously applied Rule 39 measures, that the following procedure would apply to their case. The Court would lift the Rule 39 measure in each such case in order to allow the procedure to be followed; and would inform the applicant that any new application for Rule 39 would not normally be considered until such time as the procedure and any consequent judicial remedies, including application for judicial review, had been exhausted;
The Court would notify the Government of those applicants to whom it had written in these terms;
Upon receipt of such notification, UKBA would write to the applicant or his or her representative, inviting them to submit further representations in their case;
UKBA would assess each such case in light of any representations submitted, applying new guidance that takes account both of the Sufi and Elmi judgments and the AMM decision of the domestic courts;
If UKBA conclude that in light of the new guidance and any representations made, removal should not be ordered, appropriate leave to remain in the United Kingdom will be granted; if in light of the new guidance removal to Somalia is appropriate, the application will be refused and new removal directions may be set;
In the event of a decision to refuse an application, the applicant will have the following remedies. If the representations submitted are considered to amount to a fresh claim, any decision to refuse the application will, in most cases, attract an in-country right of appeal to the AIT. If the representations are considered to amount to further submissions, any decision to reject those submissions would not attract a right of appeal. It would, however, be open to the applicant to apply to the High Court to have the decision of the Secretary of State for the Home Department judicially reviewed. An application for judicial review would normally suspend removal; and the High Court would consider any review on the basis of the current state of the law including the Court’s judgments in Sufi and Elmi and the AMM decision. There is also a further option to apply to the High Court for any injunction to prevent removal.
The Government’s assumption is that, in light of the judgment in Sufi and Elmi and the AMM judgment, Rule 39 measures will be lifted in respect of those applications currently pending before the Court that challenge removal to Somalia; and these applications will be declared inadmissible or otherwise disposed of by the Court.
The Government are confident these arrangements would ensure that the appropriate domestic authorities have an opportunity to reconsider the cases of those whose claims currently pending before the Court might be affected by the reasoning set out in the Court’s judgment and would provide such applicants with appropriate judicial remedies in the domestic courts.
Cases not currently pending before the Court
The Government also propose that, before setting removal directions for removal to Somalia (but not Somaliland or Puntland) in any future case (i.e. including cases not currently pending before the Court), the case will be assessed against the new guidance, taking account of both Sufi and Elmi and AMM. It will, of course, still be open to the individual applicants to submit further representations on the basis of Sufi and Elmi and AMM if they wish to do so. Remedies set out in paragraph (f) above would apply to any individual whose applications were rejected applying the new guidance, i.e. they would have the opportunity either to appeal against the decision to the AIT or to apply for judicial review in the High Court.
The Court can therefore be confident that in any case in which removal directions for Somalia have been set after 22 February 2012, UKBA will have considered the case against the new guidance. Furthermore the Court can also be confident that a judicial remedy would be available to any such applicant. In these circumstances, the Government will respectfully request the Court to require any new applicants to make fresh representations to UKBA if they have not already done so and to exhaust the possibility of a domestic appeal and/or judicial review before the Court considers granting a request for Rule 39 to be applied in their cases so as to halt removal to Somalia.”
6. In a decision dated 10 April 2012, the Court accepted the Government’s proposal and notified the applicants accordingly.
COMPLAINTS
7. The applicants all complained under Articles 2 and/or 3 of the Convention about their removal to Mogadishu.
THE LAW
8. Article 37 of the Convention provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
9. In order to determine whether an application should be struck out of the list pursuant to Article 37 § 1 (c) the Court must consider whether the circumstances lead it to conclude that “for any other reason....it is no longer justified to continue the examination of [it]”. The Court recalls that it enjoys a wide discretion in identifying grounds capable of being relied upon in a strike out application on this basis; however, it also recalls that such grounds must reside in the particular circumstances of each case (Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006 ...; M.H. and A.S. v. the United Kingdom (dec.), nos. 38267/07 and 14293/07, 16 December 2008).
10. In the Court’s view, the particular circumstances of these applications are such that it is no longer justified to continue their examination.
11. The applicants will now benefit from the undertakings of the Government set out in the letter of 10 February 2012. It is the Court’s understanding that the terms of the letter are broad enough to cover applicants in respect of whom Rule 39 measures have not been applied, like the applicants in the instant cases, but who have not yet received removal directions. The practical effect of these undertakings is that they will not be returned to Mogadishu without a full examination of their claims by the Government of the United Kingdom and, moreover, they will have the opportunity to lodge new applications with the Court (including the possibility of requesting an interim measure under Rule 39 of the Rules of Court) should that need arise.
12. In accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the cases. Accordingly, it is appropriate to strike the cases out of the list.
For these reasons, the Court unanimously
Decides to join the applications; and
Decides to strike the applications out of its list of cases.
Lawrence EarlyLech Garlicki
RegistrarPresident
APPENDIX
Application No.
Case Title
Intro. Date
3192/06
SHEIKH HUSSEIN v. the United Kingdom
11/01/2006
7008/06
HUSSEIN v. the United Kingdom
09/02/2006
7586/07
OMAR v. the United Kingdom
13/02/2007
11204/07
ALI v. the United Kingdom
09/03/2007
13889/07
ISA v. the United Kingdom
23/03/2007
14061/07
AHMED v. the United Kingdom
13/03/2007
16717/07
ABDULKADIR v. the United Kingdom
18/04/2007
38470/07
KIBUNYI v. the United Kingdom
30/08/2007
10092/08
IGAAL v. the United Kingdom
20/02/2008
22499/08
DUALE v. the United Kingdom
15/05/2008
36120/08
YUSUF v. the United Kingdom
21/07/2008
55535/08
IBRAHIM v. the United Kingdom
12/11/2008
59383/08
SAYID v. the United Kingdom
28/11/2008
38560/09
HASAN v. the United Kingdom
20/07/2009
65878/10
SAYID v. the United Kingdom
02/11/2010
34196/11
ADAN v. the United Kingdom
01/06/2011
40089/11
MUSE v. the United Kingdom
23/06/2011
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