COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SIMON BROWN
LORD JUSTICE WARD
| AE and FE
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Steven Kovats and Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent
Hearing dates : 16 and 17 June 2003
Crown Copyright ©
Lord Phillips MR :
This is the judgment of the Court.
"I find it unduly harsh to expect this family to relocate to Colombo. Two of the sons are now 18 and 17 years old, certainly of an age when they could be rounded up. This will add to the distress which the wife will undoubtedly suffer if she has to go back to Sri Lanka. Dr Turner's prognosis is that psychotherapy and counselling will be of no avail to her as long she remains in fear and uncertainty about returning to Sri Lanka. The consequences of actually going back while she remains in an acutely traumatized state are too serious to make return a reasonable outcome in this case. The appeals are therefore allowed."
The Tribunal's approach to the facts
"Dr Turner recommended that she should undergo treatment. He says:-
'She seems to be on some form of medication, although this was not available to me. It may be that much more could be done to improve her drug treatment regime'.
There is no evidence that anything had been done to follow up this recommendation or the alternative psychiatric treatment. It is true that Dr Turner thinks that there is a need for security in this country, but the refusal of asylum meant that that was not the position and exceptional leave to remain would not provide security since it would only last for a limited period. We are bound to say that we are not impressed by Dr. Turner's report. It is based on a relatively short interview and there has been no attempt to discover what treatment she was receiving. We are not ourselves experts and it might be said that we are not in a position to reject the opinions of those who are. But we are accustomed to seeing a large number of psychiatric reports in these cases and the same conclusions are reached in very many of them. We know that PTSD is something which needs careful diagnosis and detailed consideration of individual cases. We know too that the process of seeking to make a new life in the United Kingdom and the circumstances which triggered that process may well lead to depression or worse if obstacles seem to be arising."
"Nowhere does the adjudicator consider whether the wife could receive the necessary treatment in Colombo in the light of his positive finding that neither of the appellants is reasonably likely to be persecuted in Colombo. The possibility of the sons being rounded up is in the light of the current state of affairs remote. Nor is it clear to us what are the consequence of going back which make it unreasonable to expect the appellants to do so and thus to justify a conclusion that they are refugees."
The application to adduce fresh evidence
"(A) For the purpose of the present Convention, the term 'refugee' shall apply to any person who:
(2) Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
The Tribunal's approach to the law
"The absence of proper medical facilities to deal with a particular individual's problems will not normally be determinative unless his right to life is thereby put in jeopardy. If proper facilities are available, a person's medical condition however serious cannot make him a refugee. In Antonipillai (Appeal No: 16588 notified on 12.5.1998) at pp.32-33 of the determination the Tribunal said this:-
'This is the first occasion where we have had to consider whether or not a medical or mental condition is an aspect which has to be considered when considering whether it would be unduly harsh for a person to seek internal flight. It is our view, and one to which we have given considerable thought, that within the context of the expression 'unduly harsh' it would be unduly harsh to insist on the internal flight or return to Colombo, as in the instant cases, where the option being exercised is a case where a person is suffering from a terminal illness or suffering from physical or mental disability of such a nature as to render constant or almost constant attention of a medical or nursing nature, or whether, in the long term, such mental or physical condition is such as to preclude the person from obtaining employment, accommodation and generally acclimatising to the social conditions of the area to which internal flight is sought'.
Far from being unduly restrictive, we think that what is there said is too wide. It is only if adequate facilities are not available that IR may be said to be unduly harsh. There may be compassionate reasons for not returning but not on the basis that the individual is a refugee.
We have already recited the facts of this case. There is no evidence that treatment for depression or PTSD is unavailable in Sri Lanka. There is no real risk of persecution or indeed that the sons will be rounded up. We do not regard Dr Turner's report as supporting the adjudicator's conclusion that the distress of the wife at the prospect of return will make it unduly harsh for the husband to be returned since there is no real impediment to his wife and family returning with him."
The nature of the exercise
"The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so."
"If it is sufficient the applicant's fear of persecution by others will not be 'well founded'; if it is insufficient, it may turn the acts of others into persecution for a Convention reason; in particular it may supply the discriminatory element in the persecution meted out by others; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of his home state."
"I agree with the view of the majority. For my part, I would regard the analysis of the article which was provided by Lord Lloyd in the Adan case (1999) 1 AC 293, 304 as being both helpful and instructive. It is an important reminder that there are indeed two tests that require to be satisfied. A person may satisfy the fear test because he has well-founded fear of being persecuted, but yet may not be a 'refugee' within the meaning of the article because he is unable to satisfy the protection test. But it seems to me that the two tests are nevertheless linked to each other by the concepts which are to be found by looking to the purposes of the Convention. The surrogacy principle which underlies the issue of state protection is at the root of the whole matter. There is no inconsistency between the separation of the definition into two different tests and the fact that each test is founded upon the same principle. I consider that it has a part to play in the application of both tests to the evidence.
I would hold therefore that, in the context of an allegation of persecution by non-state agents, the word 'persecution' implies a failure by the state to make protection available against the ill-treatment or violence which the person suffers at the hands of his persecutors. In a case where the allegation is of persecution by the state or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community. But in the case of an allegation of persecution by non-state agents the failure of the state to provide the protection is nevertheless an essential element. It provides the bridge between persecution by the state and persecution by non-state agents which is necessary in the interests of the consistency of the whole scheme."
"35. The meaning of this element of the definition has recently been much debated. According to one view, it refers to protection by the state apparatus inside the country of origin, and forms an indispensable part of the test for refugee status, on an equal footing with the well-founded fear of persecution test. According to others, this element of the definition refers only to diplomatic or consular protection available to citizens who are outside the country of origin. Textual analysis, considering the placement of this element, at the end of the definition and following directly from and in a sense modifying the phrase 'is outside his country of nationality', together with the existence of a different test for stateless persons, suggests that the intended meaning at the time of drafting and adoption was indeed external protection. Historical analysis leads to the same conclusion. Unwillingness to avail oneself of this external protection is understood to mean unwillingness to expose oneself to the possibility of being returned to the country of nationality where the feared persecution could occur.
36. Despite this apparent clarity, there now exists jurisprudence that has attributed considerable importance in refugee status determination to the availability of state protection inside the country of origin, in line with the first view described above. This somewhat extended meaning may be, and has been, seen as an additional - though not necessary - argument in favour of the applicability of the Convention to those threatened by non-state agents of persecution"
"To sum up therefore on this issue, I consider that the obligation to afford refugee status arises only if the person's own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consist of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection."
When we turn to look at the cases on internal relocation we shall find that, in some of them, the courts have accorded a different meaning to "protection".
"The logic of the internal protection principle must, however, be recognized to flow from the absence of a need for asylum abroad. It should be restricted in its application to persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized."
"There is also no reason in principle why the fear of persecution should relate to the whole of the asylum seeker's country of origin; for various reasons, it may be unreasonable to expect the asylum seeker to move internally, rather than to cross an international frontier. Different jurisdictions have thus held that the relevant criterion is the availability in fact of protection in another region, and the chance of maintaining some sort of social and economic existence."
"An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety. Similarly, claimants should not be compelled to hide out in an isolated region of their country, like a cave in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable in these later cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee.
"The situation will not be perfect for the applicant. He would like to be permanently reunited with his son's family here in Canada. However, as humanitarian and compassionate grounds are an Immigration Canada matter and not within the mandate of the Refugee Division, the panel finds that it cannot view the IFA situation for the claimant to be unduly harsh or unreasonable in all the circumstances."
"A test of whether an IFA is unreasonable or unduly harsh in all the circumstances is bound to involve the consideration of some factors, at least, which will undoubtedly be the same sort of considerations that are taken into account in humanitarian and compassionate relief."
" it seems to me that the factor of requiring an elderly, dependant and unwell person to live alone in a governmental or publicly supported home with governmental or publicly supported health and other social services provided to him when there is an alternative where he is presently living where he has the emotional and family support gained from close members of his family is something which should be considered when inquiring as to whether it would be unduly harsh to send that person from the latter situation to the former."
"Rather than being seen as free standing (as more recent decisions of the Authority appear to suggest), the reasonableness test must be related to the primary obligation of the country of nationality to protect the claimant. To repeat what Professor Hathaway said in the passage relating to relocation quoted earlier, meaningful national state protection which can be genuinely accessed requires provision of basic norms of civil, political and socio-economic rights, to the same effect Linden JA in the Canadian case cited above, (1993) 109 DLR (4th) 682,688, stresses that it is not a matter of a claimant's convenience or of the attractiveness of the place of relocation. More must be shown. The reasonableness element must be tied back to the definition of 'refugee' set out in the Convention and to the Convention's purposes of original protection or surrogate protection for the avoidance of persecution. The relocation element is inherent in the definition; it is not distinct. The question is whether, having regard to those purposes, it is unreasonable in a relocation case to require claimants to avail themselves of the available protection of the country of nationality."
"We are of the view that meaningful protection means more than the mere absence, in the proposed site of internal protection, of the risk of persecution (for a Convention reason) faced in the original locality. Meaningful domestic protection is not genuinely accessed where, in the proposed site of internal protection, the individual is exposed to a risk of other forms of serious harm, even if not rising to the level of persecution. Accordingly, the internal protection inquiry mandates a second step which is an inquiry whether, in the proposed site, there are other risks which either amount to, or are tantamount to, a risk of persecution. This would include factors which have the potential of forcing the refugee claimant back to the original area of persecution.
But there is a third step to the inquiry. The view that we take is that the notion of meaningful domestic protection implies not just the absence of a risk of harm, it requires also, as Professor Hathaway has pointed out, the provision of basic norms of civil, political and socio-economic rights. These basic norms are to be found in the test of the Refugee Convention itself and in particular in Arts 2-33.
In essence, our reasoning is as follows. Because under New Zealand law the issue of internal protection does not arise unless and until a determination is made that the refugee claimant holds a well-founded fear of persecution for the Convention reason, the inquiry into internal protection is really an inquiry into whether a person who satisfies the Refugee Convention and who is prima facie a refugee - at least in relation to an identified part of the country of origin - should lose that status by the application of the internal protection principle. There is considerable force to the logic that that putative refugee status should only be lost if the individual can access in his or her own country of origin the same level of protection that he or she would be entitled to under the Refugee Convention in one of the State parties to the Convention. Clearly some State parties will accord to refugees a greater range of human rights and freedoms than the minimal standards prescribed by the Refugee Convention. Other States will barely be able to satisfy the Convention standards. But the Refugee Convention itself sets the minimum standard of human rights which the international community has agreed should be accorded to individuals who meet the Refugee Convention. The 'loss' of refugee status by the application of the internal protection principle should only occur where, in the site of the internal protection, this minimum standard is met."
The English cases
"If there is a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go, the application may be refused."
"A person who is refused leave to enter the United Kingdom under the [Immigration Act 1971] may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the [Refugee Convention]".
Sections 8(2)-(4) provided for a right of appeal in respect of other administrative decisions on the ground that removal would be in breach of the United Kingdom's obligations under the Refugee Convention.
The decision in Robinson
" . paragraph 8 of the joint position of 4 March 1996 (O.J. 1996 L. 63, p.2) defined by the Council of the European Union on the basis of article K.3 of the Treaty on European Union (O.J. 1992 C.191) on the harmonised application of the definition of the term 'refugee' in article 1 of the Geneva Convention, at p.6:
'Relocation within the country of origin
Where it appears that persecution is clearly confined to a specific part of a country's territory, it may be necessary, in order to check that the condition laid down in article 1A of the Geneva Convention has been fulfilled, namely that the person concerned 'is unable or, owing to such fear (of persecution), is unwilling to avail himself of the protection of that country,' to ascertain whether the person concerned cannot find effective protection in another part of his own country, to which he may reasonably be expected to move.'"
He added that 'the use of the words "unduly harsh" fairly reflects that what is in issue is whether a person claiming asylum can reasonably be expected to move to a particular part of the country' p.943.
"In determining whether it would not be reasonable to expect the claimant to relocate internally, a decision-maker will have to consider all the circumstances of the case, against the backcloth that the issue is whether the claimant is entitled to the status of refugee. Various tests have been suggested. For example, (a) if as a practical matter (whether for financial, logistical or other good reason) the 'safe' part of the country is not reasonably accessible; (b) if the claimant is required to encounter great physical danger in travelling there or staying there; (c) if he or she is required to undergo undue hardship in travelling there or staying there; (d) if the quality of the internal protection fails to meet basic norms of civil, political and socio-economic human rights. So far as the last of these considerations is concerned, the preamble to the Convention shows that the contracting parties were concerned to uphold the principle that human beings should enjoy fundamental rights of freedoms without discrimination. In the Thirunavukkarasu case, 109 D.L.R. (4th) 682, 687, Linden J.A., giving the judgment of the Federal Court of Canada, said:
Stated another way for clarity would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?
He went on to observe that while claimants should not be compelled to cross battle lines or hide out in an isolated region of their country, like a cave in the mountains, a desert or jungle, it will not be enough for them to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there."
"This argument turns on the correct interpretation of a few words contained in the definition of 'refugee' in art 1A(2) of the convention, being any person who:
' owing to well-founded fear of being persecuted [for a convention reason] is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that county.' (my emphasis)
The words I have italicised have not been interpreted literally. In theory it might be possible for someone to return to a desert region of his former country, populated only by camels and nomads, but the rigidity of the words ' is unable to avail himself of the protection of that country' has been tempered by a small amount of humanity. In the leading case of Ex p Robinson this court followed an earlier decision of the Federal Court of Canada and suggested that a person should be regarded as unable to avail himself of the protection of his home country if it would be unduly harsh to expect him to live there. Although this is not the language of 'inability', with its connotation of impossibility, it is still a very rigorous test. It is not sufficient for the applicant to show that it would be unpleasant for him to live there, or indeed harsh to expect him to live there. He must show that it would be unduly harsh. (For an interpretation of the word 'unduly' in the context of the statutory phrase 'unduly lenient' see - A-G's Reference (No 15 of 1990) (1990) 92 Cr App R 194 at 198-199 per Lord Lane CJ.)"
" . when dealing with questions of internal protection, the decision-maker should simply ask: would it be unduly harsh to expect the applicant to settle there? In answering this question it may have to take into account the cumulative effect of a whole range of disparate considerations, in respect of some of which it may be satisfied that they probably did not occur (or are occurring), while in respect of others it may only think that there is a serious possibility that what the applicant and/or his/her witnesses is saying is correct."
"Unfortunately both the special adjudicator and the tribunal failed to approach the convention methodically. They treated the availability of internal flight as a reason for holding that the fear of persecution was not well-founded. There may possibly be countries where a fear of persecution, albeit genuine, can so readily be allayed in a particular case by moving to another part of the country that it can be said that the fear is either non-existent or not well-founded, or that it is not 'owing to' the fear that the applicant is here. But a clear limit is placed on this means of negating an asylum claim by the subsequent provision of the article that the asylum-seeker must be, if not unable, then unwilling because of 'such fear' - ex hypothesi his well-founded fear of persecution - to avail himself of his home state's protection. If the simple availability of protection in some part of the home state destroyed the foundation of the fear or its causative effect, this provision would never be reached. This is why in most cases, including the present one, it is in relation to the asylum-seeker's ability or willingness to avail himself of his home state's protection that the question of internal relocation arises. Because, however, unwillingness is explicitly related to the driving fear, it predicates a different set of considerations from inability, which may be indicated or contra-indicated by a much wider range of factors."
"The question whether an asylum applicant is excluded from refugee status because of his unwillingness to avail himself of the protection of his country by relocating in some other part of that country is not a question of interpretation of the Convention. It requires a judgment as to the reasonableness in all the circumstances of the unwillingness. In different countries, all being signatories to the Convention, different weight may be attached to different elements of the social and economic circumstances pertaining in the area of relocation. The fact that country A applies a stricter test of reasonableness than country B does not mean that one country is acting otherwise than in compliance with the Convention. No doubt there may come a point at which a country's refusal to regard as reasonable a person's unwillingness to relocate may itself appear so unreasonable as to be outwith the Convention. But Germany's approach to relocation, via section 53(6) of the Aliens Act, requiring attention to be paid to potential 'danger for body, life, or liberty' cannot, in my opinion, possibly be regarded as outwith the Convention. Moreover, the standards required for compliance with the Convention are minimum standards. A country's approach to internal relocation may be more liberal than is strictly required for compliance with the Convention. It is arguable that the United Kingdom approach is of that character."
"If an individual is not afforded basic human rights, he may often be properly said to be persecuted. If he is subjected to discrimination for a Convention reason, he may be entitled to be regarded as a refugee. But if he is not within the Convention, the fact (if it be the case) that the country of his nationality does not maintain the standards of the Universal Declaration will not make him a refugee. The Refugee Convention does not apply merely because persons have to exist in miserable conditions or there is economic deprivation. And the conditions on return cannot of themselves make someone a refugee even though his health or his life would be in danger.
If follows that logic might suggest that, however wretched the conditions in what we shall call the safe area if IR is applicable, they cannot in the absence of a real risk of persecution for a Convention reason prevent return. But in the light of Robinson and the conclusion that failure to meet the basic norms of human rights is a relevant factor, that cannot be a correct approach for us to adopt. It is in our view important to remember at all times that what is in issue is the need for surrogate protection. If the circumstances in the so-called safe area are such as Lord Woolf has referred to, there may be a real risk that the claimant will be compelled to return to his home area where he faces persecution. There is an analogy with refoulement. Thus if, persecution apart, the conditions are worse than those in the home area, it may be easier to conclude that it was unduly harsh to expect IR. In addition, if there is in the safe area a real risk that the conditions would expose the claimant to a serious breach of basic human rights, he should not be expected to go there. It may be said that there is a degree of illogicality in this if the risk of breaches of basic human rights are no worse than in his home area. It is perhaps possible to criticise the Robinson approach on the basis that the preamble to the Refugee Convention emphasises, as might be expected, the need for fundamental rights and freedoms to be enjoyed without discrimination. It is discrimination which will engage the Refugee Convention. However, it is not open to us to limit the issue of unreasonableness or undue harshness in this way since we are bound by Robinson. However it is in our view right that for IR to be regarded as unduly harsh any breach of fundamental rights must be established to be serious."