A.D. v The Secretary of State for the Home Department

Where removal requires travel through an area affected by armed conflict, the Article 3 assessment includes the proposed route of return and any internal relocation. A returnee from Mogadishu may face a real risk if required to live in central Mogadishu, but that does not establish that travel from Mogadishu Airport through the K4 junction and Afgoye corridor is itself unsafe at the Article 3 threshold.

The assessment remains fact-sensitive. It must consider the returnee’s clan affiliation, connections, familiarity with current conditions, health, perceived wealth, and the conditions in the proposed area of relocation. On the evidence, a Marehan returnee could travel to and relocate in Gedo without a real risk of treatment contrary to European Convention on Human Rights, Article 3.

The appellant, a Somali national and member of the Marehan sub-clan, appealed against a deportation decision. Earlier tribunal decisions had dismissed his appeal. The Court of Appeal later allowed his appeal by consent only to remit the issue of protection under Article 3.

The appellant contended that he would be at risk in Mogadishu, at Mogadishu Airport and while travelling to Gedo. He relied on his long absence from Somalia, alleged lack of support, tattoos, past conduct, and general violence. The central issue was whether removal, including travel to Gedo as a possible internal relocation area, would expose him to a real risk of Article 3 ill-treatment.

1. Appeal dismissed. The Upper Tribunal re-made the decision and dismissed the appeal under Article 3 of the European Convention on Human Rights.

2. The appellant could not safely be required to live in central Mogadishu. The Tribunal applied the guidance in AM & AM [2008] UKAIT 00091: Mogadishu was unsafe for the great majority of returnees, save for exceptional persons with close connections to powerful actors. The appellant had not established that he fell within such an exception.

3. That finding did not resolve the appeal. The safety of the proposed journey from Mogadishu Airport to a relocation area was an integral part of the Article 3 assessment. The evidence showed recurrent violence around the airport, K4 junction and Hodan. It also showed that civilian flights, taxis, buses and other traffic continued to use the only available route in substantial numbers. The violence did not reach a level at which an ordinary civilian traveller faced a real risk merely by travelling along that route or the Afgoye corridor.

4. The Tribunal distinguished the unreported decision in Ahmed Farah Mohamed. It accepted that the relevant area was affected by indiscriminate violence, but found that the later and fuller evidence demonstrated that the route remained open and regularly used. The unreported decision had not fully addressed the earlier country guidance concerning road travel from the airport.

5. Gedo was a potentially safe relocation area for this Marehan appellant. His traditional clan area, clan affiliation, fitness and the absence of evidence that Gedo was saturated with displaced persons or strategically affected by fighting outweighed the disadvantages of his long absence and possible perception as a person of relative wealth. The alleged risks arising from tattoos, past offending, alcohol or drug use, and unfamiliarity with religious practice were not established on the evidence.

• Upper Tribunal (Immigration and Asylum Chamber): Re-made the decision and dismissed the Article 3 appeal.
• Court of Appeal: By consent order dated 12 January 2010, allowed the appeal to the extent of remitting it for reconsideration limited to protection under Article 3.
• Asylum and Immigration Tribunal: The second determination, promulgated on 30 September 2008, had dismissed the appeal after an earlier determination was found to contain a material error of law.