OA (Somalia) v The Secretary of State for the Home Department

In an Article 3 living-conditions case, removal will engage the returning State’s responsibility only where there is a causal link between the removal decision and the feared intense suffering. That requires temporal proximity. A risk arising only at an uncertain future date will ordinarily be too speculative.

The modified Paposhvili threshold applies to living-conditions cases where material deprivation is not intentionally caused, but remains demanding. The returnee must face immediate, serious and intense suffering reaching the Article 3 threshold. The assessment must consider all individual circumstances, including initial accommodation, support, remittances, employment and family or clan networks.

The appellant, a Somali national and member of the Reer Hamar minority clan, had been granted asylum in line with his mother. Following extensive offending in the United Kingdom, the Secretary of State decided to revoke his protection status and deport him to Somalia.

The appeal was remitted to the Upper Tribunal after earlier decisions were set aside. The tribunal reconsidered the existing country guidance in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC), including the Article 3 implications of IDP-camp conditions, and considered the appellant’s claims under the Refugee Convention and Articles 3 and 8 ECHR.

1. Article 3 legal test. The modified threshold in Paposhvili v Belgium [2017] Imm AR 867, as applied in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, may apply by analogy to living-conditions cases. The test remains rigorous. The returnee must face immediate, serious and intense suffering reaching the Article 3 threshold.
2. There must also be a causal link between the removal decision and the feared ill-treatment. That includes temporal proximity. A risk arising only at an unknown future point, after the returnee has had an opportunity to establish a livelihood or improve their circumstances, will ordinarily be too remote and speculative to engage the removing State’s responsibility.
3. The tribunal declined to treat residence in an IDP camp as automatically engaging Article 3. Said [2016] EWCA Civ 442 established that MOJ could not be read as creating a proposition of automatic Article 3 harm. The assessment must be individual and fact-sensitive. The conditions in IDP camps remained variable: some were dire, while others had materially improved.
4. The tribunal rejected reliance on Somalia’s obligations under the ICESCR and Kampala Convention as extending the MSS approach. It was not competent to determine whether Somalia had breached those instruments, and the circumstances differed from MSS v Belgium and Greece (2011) 53 EHRR 2, which concerned a Convention State’s failure to comply with domestic and European reception obligations owed to an asylum seeker.
5. The existing country guidance in MOJ paragraph 407 remained applicable. Additional guidance was given concerning the Reer Hamar, diaspora and clan networks, remittances, hotel accommodation, the Facilitated Returns Scheme, employment, rented accommodation, IDP camps, mental-health provision and the limited availability of hard drugs. Paragraph 408 of MOJ was replaced by the new internal-relocation formulation.
6. Applying the guidance, the appellant would have access to initial hotel accommodation funded by the Facilitated Returns Scheme, likely remittances, Reer Hamar and family or clan connections, available mental-health medication, and casual or day-labour opportunities. He had not shown a real risk of Article 3 treatment, persecution, or very significant obstacles to integration.
7. The appeal was dismissed on revocation, asylum and human-rights grounds. The earlier decision was set aside with no findings preserved. Anonymity was continued.

1. Upper Tribunal: The First-tier Tribunal decision allowing the appeal was previously set aside for error of law. A subsequent Upper Tribunal decision dismissing the appeal was also set aside on appeal, and the matter was remitted for a fresh determination.
2. Upper Tribunal (Immigration and Asylum Chamber): The appeal was reheard, the previous findings were not preserved, and the appeal was dismissed on revocation, asylum and human-rights grounds.