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What does the European Court of Human Rights Judgement mean for the Somali people?

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(BSMG) Liban Obsiye and Yusuf SalahThe ruling by the European Court of Human Rights that allowed two prolific serious Somali criminals to remain in the UK for fear of the breach of their Article 3 rights if sent back to war-torn Mogadishu was predictable. This overturned the British Asylum and Immigration  Tribunals decision that although a return to Mogadishu would and could expose deportees to torture, inhuman and degrading treatment as well as persecution, those with connections to the powerful people in Mogadishu might be able to live there safely. Despite the tough on foreign criminal’s stance the British government has adopted, the reality is that their policies are always subject to a compatibility test with European Union law of which the European Convention on Human Rights 1998 is one of. It is so important that if any member States policies do not comply they can be expelled from the Union after a period of financial penalization.

Article 3 is one of the most important and politically divisive rights afforded to citizens of European Union member States and those that live within their territories. It prohibits torture and it states that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” To cement its importance, it is a right which can not be withdrawn regardless of how abhorrent one’s actions may be and one which imposes both a negative and positive duty on the member States.  Negative in that they are not allowed to do any of the prohibited activities under the Article to those who live in their territory or assist those who do it and positive in that they must prevent it, where possible, from happening.

Article 3 features heavily in most asylum and deportation cases because many violations of it may occur as a result of deportation. Article 3 has allowed internationally known political refugees such as the Sikh separatist leader Chahal who was wanted by his native India for stirring up supposed tension back home to remain in the UK. Despite the right wing media’s outrage at the judgment, the reality was always that both of the Somali criminals, Abdisamad Adow Sufi, 24 and Elmi, 42, were never going to be sent back to Somalia because it is not safe to send them back and there is no functioning government from which the UK authorities could have sought assurances in the receiving State for the Court to even have considered the issue seriously. Even if the case is, as the British government has argued, that the two men are a continuing danger to the public because of the seriousness of the crimes they have committed in the past, it is up to them to find a way of managing them and containing the risk they pose to the public as sending them back to Somalia is a clear breach of their human rights.

To give an indication of the seriousness of their crimes and perhaps to shed light on why the British government considered both these men dangerous, it is important to look at the crimes they committed since living in the UK. According to British newspaper reports, Elmi was convicted of supplying class A drugs cocaine and heroin as well as robbery and Sufi of burglary and threats to kill. 

The legal victory for the two Somali men has set a precedent for the European Members States Courts to adopt and implement when faced with the potential deportation of criminals from failed or failing States. It has also given hope to many Somali prisoners who having completed their criminal sentences are awaiting deportation to Somalia. Furthermore, it has without doubt stirred up right wing British hatred for the European Union which they feel through its many institutions is undermining British sovereignty and national security. The resentment of the judgment was such that all the main right leaning media sources presented it as their main story and the Conservative Prime Minister is still in theory committed to opting out of the European Convention on Human Rights 1998 in favour of a new watered down British Bill of Rights which would have allowed him to send back dangerous foreign criminals like Sufi and Elmi to where they had originally come from. However, this would be utterly pointless as if the Bill of Rights falls short of offering the same guarantees and protection as the instrument it is replacing it will also fall foul of European Union law and the British government would have to once again amend it or face financial penalization or expulsion from the Union.

Having changed a very important discretionary aspect of European Union member’s immigration policy, what does the judgement of the European Court of Human Rights mean for the Somali people living in Europe now or wishing to seek asylum in the future?

The Daily Mails coverage of the judgement attracted 338 comments from its online readers and not one had a good thing to say about the Somali people. Reading the comments one would be forgiven for believing that every Somali British person living in the UK was guilty by association even if they did not know the two former dangerous criminals. The Mail newspaper and it’s online edition are among the most read in the UK and according to Press Gazzette, a highly reputable journalism profession magazine, they are the only media sources to have continually grown and sustained their readership in the last seven months despite the difficulties in the print media industry. In the Mail Online website that attracted nearly 2.5 million readers in July alone, there is a picture of Somalis that appear to be burning, looting and waving make shift weapons in the air. This picture clearly gives the reader a stereotypical image of Somalis as been violent, lawless and having no respect for life and property. This image speaks more than all the words that are written in the article as it can, in the eyes of the reader, justify the discrimination and stigma the Somali people living in Europe are currently facing and could face in the long-term as a result of the judgement.

“The Somali community are the real new victims of the right wing press,” said one community leader. “We have no defence and they are free to portray us through the use of poor evidence and extreme individual case studies, as lazy, ungrateful and disloyal benefit spongers. This destroys the image of the community in the eyes of their counterparts and harms even the future prospects of the hard working young Somali British people growing up today.”

“Again, the Somali community is seen to be changing a very sensitive British public policy not being or as parliamentarians but through crime and default,” added a community worker. “It would have been better for the Somali community if those two and all the other prisoners awaiting deportation were sent back because at least then I won’t have to be made to feel guilty by a narrow-minded hateful press.”

As well as the stigma and the verbal and written national attack on the community by the right wing press, the European Court of Human Rights judgement will make entering the European Union very difficult for Somali refugees and visitors in the future.

“The reality is that if it is hard to send a certain group of people back to their place of origin due to some important reason, the likelihood is that the Home Office will make it tougher for them to enter in the first place,” said a local immigration and Human Rights lawyer. “As a result of this judgement, many genuine refugees who have never met the two former criminals will be affected by their court decision. At a time when there is very little help in the form of free legal advice which all those who qualify for should have a right to in a democratic State like the UK, life will be very hard for those who are lucky enough to make it to a European State to seek asylum.”

While the judgement in the case of Sufi and Elmi may have been a success for them and for the cause of Human Rights in Europe it will inevitably further entrench the stigmatisation the Somali community faces in the UK and wider Europe. The judgement was also very narrow and not a total victory for all Somali prisoners in that it prohibited deportation  to Mogadishu and not the more peaceful parts of Somalia and the self declared independent State of Somaliland where there is peace and a functioning government. As a result, criminals from these areas will properly not be as lucky as Sufi and Elmi and be sent back upon completing their sentences in British prisons.  The community’s anger with the two former criminals is understandable as the majority law abiding members of the Somali community are working tirelessly to integrate and contribute to their new adopted home countries. However, if they do not assist their more deviant and wayward members to rehabilitate, they will always be guilty by association in the eyes of the right wing press here in the UK and in wider Europe.

Liban Obsiye —  libanbakaa@hotmail.com  and Yusuf Salah – ylucknow@hotmail.com

Both writers live in Bristol, UK and work within the third sector as advisers and community advocates.

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