The Secretary of State for the Home Department v Mahad Abdullahi Ainte

Article 3 of the European Convention on Human Rights may be engaged by extreme material deprivation even where the deprivation is not deliberately caused. The applicable threshold in a case of non-intentional deprivation is the modified N test in [2020] UKSC 17: there must be a real risk of intense suffering or a significant reduction in life expectancy.

Country guidance on return to Mogadishu requires an individual assessment. Relevant matters include family or clan support, remittances, resources, absence from the city, and realistic prospects of employment. Entry to an IDP camp does not itself establish an Article 3 breach.

The Qualification Directive continued to have direct effect after withdrawal from the European Union.

The Secretary of State appealed against a First-tier Tribunal decision allowing Mahad Abdullahi Ainte’s deportation appeal on Article 3, humanitarian-protection and Article 8 grounds. The First-tier Tribunal had found a real risk that he would experience extreme material deprivation on return to Mogadishu.

The Upper Tribunal had previously set that decision aside for inadequate findings and directed that the human-rights and Article 15 issues be remade. The respondent was a Somali national, a foreign criminal sentenced to four years’ imprisonment, who had lived in the United Kingdom since age 16. He maintained that he would have no family support, remittances or secure livelihood in Mogadishu.

The central issue was whether the conditions he was likely to face created a real risk of Article 3 ill-treatment, applying the proper threshold for non-intentional material deprivation.

1. The Secretary of State’s appeal was allowed and the respondent’s appeal against deportation was dismissed on all grounds.

2. Secretary of State for the Home Department v Said [2016] EWCA Civ 442 does not establish that naturally occurring socio-economic deprivation can never engage Article 3. It requires a high threshold and an assessment of the effect of conditions on the particular individual. Nor does entry into an IDP camp automatically amount to Article 3 ill-treatment.

3. Where material deprivation is not intentionally caused by the authorities or non-state actors, the applicable standard is the modified N test adopted in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17. The question is whether there is a real risk of intense suffering or a significant reduction in life expectancy. The ordinary Article 3 threshold applies where deprivation is causally attributable to deliberate conduct or omissions, but that was not established on the evidence concerning Somalia.

4. The Tribunal applied MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). The respondent had no close relatives in Mogadishu, no likely remittances, and no return grant or dependable humanitarian assistance. Those matters created real difficulties, but he was a fit, capable and resilient adult. He had previously lived independently in Mogadishu, spoke Somali and English, retained Somali cultural links, and was likely to secure work and basic but secure accommodation.

5. Accordingly, he had not shown a real risk of intense suffering or significant reduction in life expectancy. Article 15(b) of the Qualification Directive added no separate issue. Although deportation would adversely affect his mental health and private life, there were no very compelling circumstances outweighing the strong public interest in deporting a serious offender.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s decision allowing the appeal on Article 3, humanitarian-protection and Article 8 grounds was set aside for error of law. This remade decision dismissed those grounds.
• First-tier Tribunal: The appeal had been dismissed on Refugee Convention grounds but allowed on human-rights and humanitarian-protection grounds. No citation was stated.