ECtHR decision in K.A.B. v Sweden, Application No. 17299/12, 5 September 2013

Friday, October 4, 2013

The applicant, from Mogadishu (Somalia), sought asylum in Sweden in April 2009, allegedly to escape persecution by al-Shabaab, an Islamist group in Somalia. He claimed to have been persecuted for working with the American Friends Service Community from 1992 to 2005, including by way of threatening telephone calls telling him to stop spreading Christianity. After five interviews with the Swedish Migration Board, and an oral hearing before the Swedish Migration Court, the applicant's asylum claim was rejected, on grounds of vagueness and lack of credibility. While progressing through the appeal process without success, the applicant obtained from the ECtHR an interim measure requesting the Swedish Government not to deport him to Somalia until further notice. Before the ECtHR, the applicant submitted that his return to Somalia would place him at a real risk of death or serious injury from al-Shabaab, contrary to Article 2 (right to life) and Article 3 (prohibition of torture and of inhuman or degrading treatment).

By a 5-2 Majority, the Chamber decided against the applicant, both due to recent improvements in the security situation in Mogadishu, and due to the applicant's personal circumstances. As to the former, the Chamber ruled that the situation had changed since Sufi and Elmi v. the United Kingdom (nos. 8319/07 and 11449/07, 28 June 2011). The general level of violence in Mogadishu had decreased and al-Shabaab was no longer in power. The Chamber relied on recent country reports from the Danish and Norwegian immigration authorities, which stated that there was no longer any front-line fighting or shelling and the number of civilian casualties had gone down. Despite continued unpredictability and fragility, the Chamber concluded that not everyone in Mogadishu faced a real risk of death or ill-treatment.

As to the applicant's own situation, the Chamber shared the Swedish authorities' skepticism regarding the applicant's claims of persecution. The Chamber cited credibility and vagueness issues concerning the applicant's purported residence in Mogadishu prior to leaving Somalia in 2009, his employment with American Friends Service Community, and the four year delay after his employment ended before alleged threats were made. The Chamber also placed weight on the applicant not belonging to a group targeted by al-Shabaab, and on his having a home in Mogadishu (where his wife lives).

The Court therefore concluded that Sweden would not violate Articles 2 or 3 by returning the applicant to Somalia. However, the Court affirmed the existing Rule 39 interim measure preventing return until either the judgment becomes final, or there is a further decision after successful referral to the Grand Chamber.

Read a press release and the full text of the judgment on the ECtHR's website.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Personal circumstances of applicant
Country of origin information
Credibility assessment
Inhuman or degrading treatment or punishment