AMM (Somalia CG): RT (Zimbabwe) applied to Al‑Shabab “playing the game”, Article 15(c) v Article 3 clarified, internal relocation burdens recalibrated, and FGM risk country guidance

Introduction

In AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC), the Upper Tribunal (Immigration and Asylum Chamber) delivered a landmark country guidance determination on Somalia, synthesising extensive factual records (including post‑June 2011 developments), intervenor submissions from UNHCR, and the then-recent Strasbourg judgment in Sufi & Elmi v United Kingdom. The Tribunal addressed:

• How UK tribunals must “take into account” Strasbourg jurisprudence while retaining their own fact-finding role and evidential weighing;
• The distinct scope between Article 3 ECHR (and Article 15(b) of the Qualification Directive) and Article 15(c) (Elgafaji; QD (Iraq));
• When dire humanitarian conditions can reach the high Article 3 threshold (N v UK; MSS v Belgium and Greece; Sufi & Elmi);
• Al‑Shabab’s religiously‑motivated regime and the consequence that returnees who transgress, or are perceived to transgress, are at risk of persecution for an imputed religious opinion (including where they could “play the game” under RT (Zimbabwe));
• Internal relocation: who bears what burden, the significance of “technical obstacles to return” (Article 8 Qualification Directive), and the role of travel risks inside Somalia;
• Somaliland/Puntland admission practices and the practicality of return for people linked to those regions;
• Comprehensive country guidance on risk from conflict and humanitarian conditions in Mogadishu and wider south/central Somalia; and
• A self‑standing country guidance section on FGM in Somalia.

Five appellants (AMM, MW, ZF, FM and AF) provided the vehicle for the guidance. The Secretary of State was the respondent; UNHCR intervened. The Tribunal sat between June and July 2011 and received further post‑hearing updates after Al‑Shabab’s withdrawal of conventional forces from most of Mogadishu in early August 2011.

Summary of the Judgment

Key legal holdings

• Strasbourg judgments must be taken into account under section 2 HRA, including guidance on assessing country material, but UK tribunals are not bound by Strasbourg’s factual findings or the weight it assigns to pieces of evidence (Batayav; Ullah; Horncastle; Pinnock).
• There remains a meaningful, narrower difference between Article 3 ECHR/Article 15(b) and Article 15(c) (Elgafaji; QD (Iraq)). Article 15(c) can be satisfied without reaching the “most extreme” general-violence threshold demanded for Article 3 (NA v UK), because 15(c) covers a “more general” risk of harm and can encompass less severe harms.
• Humanitarian crises can exceptionally engage Article 3. While Sufi & Elmi treated the parties’ actions as the predominant cause, the Tribunal—on a fuller record—found the predominant cause of famine to be natural drought, with conflict aggravating the situation. Even so, the cumulative gravity was exceptional enough to meet the N v UK threshold in south/central Somalia (outside Mogadishu).
• Religion under the Qualification Directive requires an actual belief system, but the necessary Convention nexus can be satisfied via imputed religious opinion. Al‑Shabab’s enforcement of its Takfiri ethos means those perceived as apostates face religiously‑motivated persecution.
• “Playing the game” is not required. Applying RT (Zimbabwe), even if a person could conform outwardly in Al‑Shabab areas, refusal to require them to conceal non‑adherence or to lie about their beliefs entitles them to refugee protection if persecution would otherwise follow.
• No general principle excludes consideration of acts abroad that would be criminal in the UK; however, genuine conscientious objection to unjust demands (e.g., paying Al‑Shabab “taxes”) may ground protection.
• Internal relocation: there is no legal burden on the Secretary of State to prove a safe place; the appellant bears the legal burden overall. But the Secretary of State must put relocation “in play”, and practical reasonableness, travel risks, and (under Art 8(3) QD) technical obstacles all matter.
• Asylum and humanitarian protection appeals may be decided on the realistic hypothesis that family members would return with the appellant; however, one cannot claim protection based on harm they would themselves willingly inflict on another (e.g., a parent intending to submit a daughter to FGM).
• Assessment of lies is holistic, not mechanistic: the “negative pull” of a lie depends on what was lied about and the strength of the background evidence (MA (Somalia)).

Country guidance headlines

• Mogadishu:
  • Despite Al‑Shabab’s August 2011 withdrawal of conventional forces, there remained, in general, a real risk of Article 15(c) harm for most returnees after significant time abroad.
  • No general Article 3 risk in Mogadishu by reason of armed conflict. Fit returnees or those with family connections may avoid IDP camps; vulnerable people may still face Article 3 risks.
  • Refugee Convention issues are unlikely to be engaged by return to Mogadishu except for FGM.
• Southern and central Somalia (outside Mogadishu):
  • Fighting is sporadic and localised; no blanket Article 15(c) or Article 3 risk solely from conflict.
  • In Al‑Shabab areas, a returnee with no recent experience in Somalia will, in general, face Article 3 ill‑treatment; those forced to pass through Al‑Shabab zones are at similar risk.
  • Because the harm is religiously motivated and imputed, such people are, in general, refugees; and applying RT (Zimbabwe), even people able to “play the game” are refugees.
  • Given famine conditions, relocation to IDP camps tends to be unreasonable unless the person can access the lifestyle of better‑off camp residents; relocation to Al‑Shabab areas is infeasible; to non‑Al‑Shabab famine areas is generally unreasonable.
• Somaliland/Puntland:
  • Generally admit back former residents and local clan members only; returnees must often show the requisite connection.
  • Overland travel from Mogadishu to Somaliland generally entails a real risk; air travel to Hargeisa generally does not.
• Female Genital Mutilation:
  • Prevalence exceeds 90%, predominantly Type III (pharaonic).
  • In general, an uncircumcised, unmarried Somali woman up to age 39 faces a real risk of FGM; parental opposition often fails to remove the real risk unless socio‑economic status or other specific features meaningfully distance the family from prevailing norms.

Analysis

Precedents and their influence

• Sufi & Elmi v UK: The Tribunal carefully “took into account” Strasbourg’s legal framework but distinguished its factual findings. While recognising the Court’s approach to evidence and humanitarian crisis (invoking MSS to avoid N’s narrowness where the State is the direct cause of harm), the Tribunal, on a later and wider record, found drought the predominant cause. Crucially, it confirmed domestic tribunals can and must weigh evidence themselves.
• Elgafaji; QD (Iraq): Provided the controlling law on Article 15(c), emphasising its distinct and broader coverage compared to Article 3/15(b). The Tribunal reaffirmed that 15(c) can be met without NA v UK’s “extreme” violence threshold.
• NA v UK: Sets the high threshold for Article 3 based on generalised violence. The Tribunal used NA to underline why 15(c) remains necessary and distinct.
• MSS v Belgium & Greece; N v UK: MSS illuminates where State responsibility for degrading treatment engages Article 3. The Tribunal’s nuanced reading: even though the immediate cause in Somalia was drought, the cumulative circumstances in south/central Somalia amounted to a “very exceptional” Article 3 case.
• RT (Zimbabwe); HJ (Iran): Pivotal. The Tribunal extended RT’s logic beyond political opinion to imputed religious opinion under Al‑Shabab, holding that people should not be required to “play the game”—conform or lie—to avoid persecution.
• MA (Somalia) (SC): On lies, the Tribunal rejected any rigid sequence; it adopted a holistic appraisal, mindful of the lie’s centrality and the strength of objective evidence.
• HH and others; NM & others (Somalia CG): Prior guidance formed the baseline, updated here with the Mogadishu front-line evolution, Al‑Shabab’s expanding/retracting reach, and famine conditions.
• Ullah; Horncastle; Pinnock: Defined the s.2 HRA relationship with Strasbourg—UK courts should usually follow clear and constant jurisprudence but can depart, particularly over evidentiary appreciation.
• Batayav: Demonstrated when Strasbourg factual conditions may be so generalised that UK tribunals must align; AMM explains why Somalia’s complex, dynamic matrix warranted independent weighing.
• Salah Sheekh: On internal flight and minority vulnerability; cited within broader relocation and protection analysis.

Legal reasoning in depth

1) Taking account of Strasbourg while remaining master of the facts

The Tribunal was explicit: section 2 HRA requires taking Strasbourg into account, including its evidential approach (NA), but does not bind UK fact-finders to Strasbourg’s specific factual conclusions or the relative weight it gives to reports. UK tribunals must apply ECtHR’s legal principles to UK-tested evidence and procedure. This matters where the ECtHR had limited or older data; AMM decided the predominant cause of famine was drought, not the warring parties, yet still found the overall situation met Article 3’s exceptional threshold.

2) Article 15(c) v Article 3/15(b): the “more general risk” remains distinct

Elgafaji/QD (Iraq) were reaffirmed. Article 15(c) covers a broader, population-level risk than Article 3/15(b), and the harm threshold can be lower. NA’s “extreme” general-violence bar is not imported into 15(c). This distinction allowed the Tribunal to find:

• Mogadishu: general Article 15(c) risk persisted for most returnees after time abroad, despite the non‑general Article 3 risk.
• South/central outside Mogadishu: no blanket 15(c) risk from sporadic, localised fighting but individual 15(c) exposure was fact‑sensitive.

3) Humanitarian conditions and Article 3

The Tribunal deployed a rigorous two‑stage analysis:

• Predominant cause assessment: drought, not conflict, predominated;
• Totality and exceptionality: nonetheless, the famine’s severity, scale and aggravation by conflict and administrative restrictions created a “very exceptional” situation engaging Article 3 in south/central Somalia outside Mogadishu. In Mogadishu, aid access and urban alternatives were better, such that Article 3 was not generally engaged by conflict/humanitarian conditions, though vulnerable individuals remained protected.

4) Religious persecution under Al‑Shabab; “playing the game” rejected

Article 10 Qualification Directive requires a genuine belief for a claim based on the applicant’s religion. But persecution “for reasons of religion” can be grounded in an imputed religious opinion. The Tribunal found Al‑Shabab’s religiously‑motivated rules and punishments target those perceived as apostates (kufr). Consequently:

• Returnees lacking recent experience of living under Al‑Shabab are generally at real risk of Article 3 ill‑treatment;
• Because the harm is religiously‑motivated, those at risk are ordinarily refugees; and
• Even those who could conform are not required to do so: following RT (Zimbabwe), the Convention protects individuals from persecution for beliefs they do not hold and cannot be required to hide or lie about, in order to avoid harm.

5) “No requirement to act illegally” and conscientious objection

The Tribunal declined to adopt any general rule excluding consideration of potential acts abroad that would be illegal in the UK (e.g., bribery, or obtaining an “old green” passport). Such realities are part of the country matrix. However, a claimant may establish protection needs based on a genuine conscientious objection to unjust demands (e.g., Al‑Shabab “taxation” funding violence), potentially engaging the Refugee Convention (if with a Convention nexus) or subsidiary protection.

6) Internal relocation: burden, reasonableness, and travel risk

There is no legal burden on the Secretary of State to prove a safe area for relocation; the appellant bears the legal burden of entitlement to protection. Practically, the Secretary of State must raise relocation in the refusal or during the appeal; thereafter the appellant must show it is not reasonable, factoring in local conditions, available support, and, for Article 3, whether harsh living conditions would likely drive the person back to a risk area. Importantly:

• Article 8(3) of the Qualification Directive allows reliance on internal protection notwithstanding “technical obstacles to return” (e.g., documentation) – distinguishing “risk to life and limb” in transit from administrative impediments;
• Travel risks are part of the protection analysis. Overland travel across south/central Somalia—especially through Al‑Shabab checkpoints—was found to pose real risks; unaccompanied women face a general risk of sexual violence;
• Air travel from Mogadishu International Airport within Somalia, including to Hargeisa, is generally safe for commercial flights, changing the relocation calculus where available.

7) Somaliland and Puntland

The Tribunal reaffirmed (NM & others) that Somaliland and Puntland generally admit former residents or those with strong local clan ties. As a result:

• Claimants asserting a Somaliland/Puntland link must be prepared to evidence it; if raised late by the respondent, fairness issues can arise;
• Overland transit to Somaliland typically entails serious risk; air return to Hargeisa is generally safe, but documentary issues and “technical obstacles” must be separated from substantive risks.

8) FGM country guidance

The Tribunal set clear guidance for Somalia:

• FGM prevalence exceeds 90%, predominantly the most severe Type III; social compulsion is strong.
• Uncircumcised unmarried women up to 39 are, in general, at real risk of FGM.
• Parental opposition often fails to avert the real risk unless specific socio‑economic or locational features weaken societal pressure.
• A parent can succeed in their own claim due to the persecutory anguish if their daughter faces FGM (FM (FGM) Sudan applied), but not where they intend to facilitate the harm themselves—protection cannot be built upon harm one would willingly visit on another.

9) Lies and their “negative pull”

Citing MA (Somalia), the Tribunal avoided any rigid steps. It assessed lies holistically: how central the lie is to the real issues, and how strong the background evidence is. A lie on a former, now-marginal issue may have little “pull” against robust objective evidence on current risks.

Impact

• Practical outcomes for Somalia claims:
  • Mogadishu: Most returnees after time abroad remain protected under Article 15(c); not all will qualify under Article 3.
  • Al‑Shabab areas: The RT/HJ line of authority now squarely protects people from “performative conformity” to religiously‑motivated rules; imputed religious opinion analysis will proliferate.
  • Humanitarian crisis: The judgment shows how exceptional facts can still meet the high Article 3 threshold outside Mogadishu, even where drought predominates.
  • Relocation & travel: Expect greater scrutiny of travel realism and availability of safe air corridors; late‑raised Somaliland/Puntland link arguments must be procedurally fair and evidence‑based.
  • FGM: A strong presumption of risk for uncircumcised unmarried women up to 39 will anchor many claims; opposition by parents requires careful, fact‑sensitive analysis.
• Doctrinal developments of wider relevance:
  • Strasbourg fact‑finding: UK tribunals will continue to “take into account” ECtHR but are not bound by its weighing of evidence—especially in fast‑moving country contexts.
  • RT (Zimbabwe) portability: Extending RT beyond political opinion to imputed religious opinion strengthens protection where extremist regimes condition safety on belief or performance.
  • Burden in internal relocation: Clarifies the legal/evidential architecture; confirms role of Article 8(3) QD; and embeds travel risk into the merits analysis.
  • Conscientious objection: Recognises principled refusal to comply with unjust demands as potentially protection‑grounding, without globalising a “no illegal acts” rule.

Complex Concepts Simplified

• Article 15(c) Qualification Directive: Protects people from a serious and individual threat to life or person by reason of indiscriminate violence in an armed conflict. It is not limited to targeted abuse; it can cover population‑level risks and encompasses harms less severe than Article 3/15(b).
• Article 3 ECHR: Prohibits torture or inhuman or degrading treatment. In generalised violence cases, it is engaged only in “the most extreme” scenarios (NA v UK). Dire humanitarian conditions can meet Article 3 only in “very exceptional” cases (N v UK), but MSS shows State responsibility for degrading detention/living conditions also matters.
• “Imputed” religious or political opinion: You can be persecuted “for reasons of” religion/political opinion even if you don’t truly hold the view, if the persecutor attributes it to you (e.g., sees Western returnees as apostates).
• “Playing the game”: A shorthand for outwardly conforming to avoid attention. After RT (Zimbabwe) and HJ (Iran), people should not be required to hide or lie about identity/belief (or non‑belief) to avoid persecution.
• Internal relocation: A claim can fail if there is a part of the country where the person faces no risk and could reasonably live. It is not just about a theoretically safer place; the person must be able to get there safely and live there without undue harshness.
• Article 8(3) QD—technical obstacles: Member States may rely on an internal protection alternative despite administrative/documentary obstacles, so long as there are no substantive risks to the person in transit or on arrival.
• FGM risk analysis: In Somalia, prevalence and social pressure are so high that being an uncircumcised unmarried woman up to 39 creates a general real risk signal—subject to specific evidence that removes the risk.

Conclusion

AMM (Somalia CG) is a major recalibration of Somalia country guidance and an important exposition of general protection law. Doctrinally, it:

• Re‑asserts the distinct role of Article 15(c) alongside Article 3/15(b);
• Demonstrates principled engagement with Sufi & Elmi and MSS/N, while preserving domestic fact‑finding autonomy;
• Extends RT (Zimbabwe)’s animating principle—no compelled concealment or lies—to imputed religious opinion under Al‑Shabab; and
• Clarifies the operational burdens and evidential approach to internal relocation, travel risk, “technical obstacles”, and conscientious objection.

On the country facts, it carefully differentiates Mogadishu (Article 15(c) risk for most returnees; no general Article 3 risk) from wider south/central Somalia (no blanket 15(c) risk from conflict; but Article 3 engaged by the exceptional humanitarian situation, and Al‑Shabab areas generating both Article 3 risk and Refugee Convention claims on religious grounds). The dedicated FGM guidance provides clear, practical benchmarks for decision‑makers in a context of overwhelming prevalence and social compulsion.

AMM will shape Somali protection claims for years, but its significance is wider: it sets out a robust method for aligning Strasbourg principles with rigorous domestic evidence‑weighing; it develops the RT/HJ strand across belief‑based persecution; and it emphasises real‑world feasibility—from the runway at Aden Adde International Airport to the checkpoint on a rural road—in every internal relocation analysis.