COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
AS/02164/2005 et al
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice Moore-Bick
Lord Justice Moses
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Miss Lisa Giovannetti and Mr Robert Kellar (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Hearing dates : 20-21 March 2007
Crown Copyright ©
Lord Justice Buxton:
This is the judgment of the court
Risk on Return
Risk to persons of non-Arab Darfuri origin
"Millions living close to rebel territory and who share the same ethnicity of the rebels are particularly vulnerable to human rights violations by the Sudanese armed forces."
H and M are from the Zaghawa tribe which has been particularly targeted. G is from the Black African Moslem Al Berget tribe. The AIT accepted that all three appellants came from an ethnic background which would make them susceptible to ethnic persecution in Darfur.
"There is simply no reason to suppose that somehow they omitted persons of Darfuri origin from consideration."
It described the evidence of Drs Alizadeh and Schodder as weighty and said there was no reason to adopt a different view (see paragraph 208).
"…are so widespread that it cannot be said that there is an internal flight alternative anywhere in Sudan for asylum-seekers from Darfur, including for those who resided in Khartoum before the Darfur crisis. Sudanese of 'non-Arab' Darfuri background face a heightened risk of scrutiny by the security apparatus." (see paragraph 8 of the Position Paper recorded at § 134 of the AIT's determination)
"Furthermore, where internal displacement is a result of 'ethnic cleansing' policies, denying refugee status on the basis of the internal flight or relocation concept could be interpreted as condoning the resulting situation on the ground, and therefore raises additional concerns."
The AIT asserted that UNHCR's views were "predicated" on that sentence and that sentence did not represent the law in the United Kingdom (see paragraphs 197-198). The conclusion that the UNHCR's views were predicated on the danger of appearing to condone events in Darfur is unfounded. Reading the passage we have cited, as a whole, it is plain to us that the paper's comment about condoning ethnic cleansing policies is an additional point and not a point upon which the UNHCR's views as to risk is on return were founded, let alone "predicated". The AIT has misread the Position Paper.
"…asks us to assume that that there are never contacts in Khartoum who have been asked to check whether such persons have arrived safely and who have alerted family and/or friends in the United Kingdom etc. they have not." (see paragraph 210)
Persons Eligible for Military Service
Special categories, and refugees sur place
The relevant jurisprudence
The fear of being persecuted need not always extend to the whole 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.
This test of reasonableness of relocation has been described, as least in the English jurisprudence, in terms of whether it would be unduly harsh to expect the persecuted person to relocate. That formulation underlines the stringency of the test that the persecuted person has to overcome; but that should not be permitted to conceal that the issue is the reasonableness of requiring relocation by this persecuted person from the area where he is persecuted to another part of his country of nationality. As Lord Woolf MR said in R v SSHD ex p Robinson  QB 929 at 943D:
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.
Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there. Living conditions in the safe haven may be attendant with dangers or vicissitudes which pose a threat which is as great or greater than the risk of persecution in the place of habitual residence. One cannot reasonably expect a city dweller to go to live in a desert in order to escape the risk of persecution. Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is 'outside the country of his nationality by reason of a well-founded fear of persecution'.
24. If this approach is adopted to the possibility of internal relocation, the nature of the test of whether an asylum seeker could reasonably have been expected to have moved to a safe haven is clear. It involves a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker. What the test will not involve is a comparison between the conditions prevailing in the safe haven and those prevailing in the country in which asylum is sought.
Lord Phillips returned to the point in two further parts of his judgment. At §64 he said:
So far as refugee status is concerned, a comparison must be made between the asylum seeker's conditions and circumstances in the place where he has reason to fear persecution and those that he would be faced with in the suggested place of internal location. If that comparison suggests that it would he unreasonable or unduly harsh, to expect him to relocate in order to escape the risk of persecution, his refugee status is established.
And having stressed the need to distinguish between refugee status under the Refugee Convention; the requirements of the Human Rights Convention; and the dictates of common humanity; he said, at §67, in respect of the first of those:
we consider that consideration of the reasonableness of internal relocation should focus on the consequences to the asylum seeker of settling in the place of relocation instead of his previous home.
can live a relatively normal life there judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.
the conditions in [the country of habitual residence] generally as regards the most basic of human rights that are universally recognised-the right to life, and the right not to be subjected to cruel or inhuman treatment-are so bad that it would be unduly harsh for the claimant to have to seek a place of relocation there.
That analysis might be read, and the AIT in §§ 234-235 of its determination may have read it, as requiring for "undue harshness" nothing less than breaches of articles 2 and 3 of the Human Rights Convention. That however cannot be so, for three reasons. First, it is plain and not doubted that there is a difference between the tests applied in relation to the Refugee Convention on the one hand and the Human Rights Convention on the other: see the analysis of Lord Phillips in §§ 64-67 of E, referred to in §24 above. Second, Lord Hope cited in support of the point that he was making submissions by counsel for the Secretary of State that a conclusion as to "undue harshness" could be reached without reliance on the Human Rights Convention. Thus, Lord Hope had in mind a case where conditions throughout the country were unacceptable in Refugee Convention, and not just in Human Rights Convention, terms. Third, it was clearly not the view of Lord Bingham in Januzi that the approach to internal relocation was circumscribed by the standards of articles 2 and 3 of the Human Rights Convention. That Lord Hope's analysis did not differ in the result from that of Lord Bingham is demonstrated by Lord Mance having been able to agree with both speeches without qualification or addition. It is therefore to the speech of Lord Bingham that we must turn, it having been agreed in full by all of Lords Nicholls, Carswell and Mance.
What must be shown to be lacking is the real possibility to survive economically, given the particular circumstances of the individual concerned (language, knowledge, education, skills, previous stay or employment there, local ties, sex, civil status, age and life experience, family responsibilities, health; available or realisable assets, and so forth)
The indicia given by Dr Storey show that the possibility to survive economically is an aspect of living a relatively normal life as an economic operator, rather than as a recipient of charity.
i) The starting-point must be conditions prevailing in the place of habitual residence
ii) Those conditions must be compared with the conditions prevailing in the safe haven
iii) The latter conditions must be assessed according to the impact that they will have on a person with the characteristics of the asylum-seeker
iv) If under those conditions the asylum-seeker cannot live a relatively normal life according to the standards of his country it will be unduly harsh to expect him to go to the safe haven
v) Traumatic changes of life-style, for instance from a city to a desert, or into slum conditions, should not be forced on the asylum-seeker.
The approach of the AIT
integral to the assessment which must be made is a comparison between the conditions in the country as a whole and those which prevail in the place of intended alternative relocation ([Januzi] paragraphs 19 and 54).
However, the comparison envisaged by E and by Lord Bingham in Januzi is between conditions in the place of habitual residence and those in the safe haven, as the latter affect the asylum-seeker: see §31 above. The AIT's analysis entirely excludes from the equation the original condition of the asylum-seeker and the effect on him of the new conditions. The reformulation is important, because it led the AIT to place weight on comparisons (however sparse the evidence was to support them) between conditions in Khartoum and conditions elsewhere in Sudan (other than in Darfur), or even elsewhere in the world. In particular, at its §236 the AIT referred to, and thereafter relied on, a statement elicited in cross-examination from the appellants' experts that
in general terms, albeit the living conditions in Khartoum IDP camps compared unfavourably with those in Darfur currently, conditions in the squatter areas and IDP camps in Khartoum were no worse than the living conditions found in other slum-settlements elsewhere in Sudan or much of the rest of African or other third world countries.
Not only does this formulation specifically exclude from consideration the first point of reference, conditions in the place of habitual reference, but it also introduces a test for the safe haven, by reference to other parts of the country, or the world, in which the asylum-seeker did not live. That test, as a binding test, is to be found nowhere else in the jurisprudence. When reviewing the state of conditions in the safe haven it might be illuminating to compare them with conditions elsewhere; but it is hardly to be thought that when Lord Phillips, Lord Bingham and Lord Carswell took the example of the city dweller forced to go and live in a desert they would have held that the case changed once it was established that there are other deserts in his country, or in the world, apart from the one to which he was expelled.
[the experts'] view was that returnee non-Arab Darfuris were ill-equipped for city dwelling slum life, having come in the main from rural 'sedentary' backgrounds as farmers. However, once again that is a feature shared by many other non-Darfuri IDPs in Khartoum and many other slum dwellers elsewhere in Sudan and other parts of the world.
But it is no more relevant to our enquiry that other people with the same personal characteristics have been displaced for reasons unconnected with Convention persecution than it is that the place where they are being sent is no worse than some other places in Sudan. The enquiry has to be about these asylum-seekers and the effect of the displacement on them.
even if such a person shows that it is reasonably likely he or she will end up in such a camp or area, conditions there, though poor, are not significantly worse than the subsistence level existence in which people in Sudan generally live. Applying the principles set out in Januzi, the conditions in such camps or areas are not generally such as to amount to unduly harsh conditions.
A conclusion in those terms was not open to the AIT. First, it pays no attention to the characteristics of the asylum-seeker or to a comparison with conditions in his place of habitual residence and those in the safe haven. Second, for the reasons set out in §24 above it is an error of law to hold that internal relocation is available just because conditions in the safe haven are no worse than those in some other parts of Sudan. And when the AIT here refers to "Sudan generally" it cannot on the evidence or on its observations earlier in the judgment be speaking of the whole of Sudan, rather than of some other parts of Sudan.
Conclusions on the issue of internal relocation
The living and health conditions of IDPs are appalling…Since 2003, the demolition of IDP camps and squatters' settlements in Khartoum has progressed and about 250,000 IDPs have been made homeless by the government. Protests of the United Nations against this demolition policy did not help. IDPs have been sent to new sites far away from the city into the desert with no water or other services.
And taking up the latter theme, Dr Kalin wrote of one camp where there had been forcible displacement:
In the Al-Fatah camp where the victims of forced relocation were living at the time of my visit, I was struck with their most desperate situation and appalling conditions of extreme poverty. They had scarcely been able to erect makeshift huts from plastic sheets and cardboard as they had been left without any building material. While there was a water bladder no food or other life-sustaining goods had been provided…..The camp is situated some 50km outside of Khartoum in the desert, where without water agricultural activities are impossible.
That is just one camp, but there is no guarantee that someone sent to Khartoum will not end up there. The AIT at its §127 said that there had not been any forced relocations since 2005; but Professor Kalin's report was that there was still a serious risk of such relocations, and in its §244 the AIT recognised that relocations, sometimes involving force and human rights violations, did (it would seem, currently) occur.
At the beginning of November 2004 it has been observed and discussed by the IDP communities that over 80% of the families are living in temporary shelters. These makeshift shelters consist of paper, card box, textile and plastic pieces and do not provide sufficient protection from rainy or cold weather. It is feared that the health status of the inhabitants and especially of children and the elderly will be negatively affected during the coming cold season. The health condition of the IDPs is a concern due to reportedly increasing incidents of diarrhoea, pneumonia, malnutrition, etc.
The individual appellants
the Tribunal does not consider that an adult male in the position of appellant H, even if he were to find himself in a squatter area or a camp for internally displaced persons in Khartoum, would thereby either suffer Article 3 ill-treatment or lack the real possibility of surviving economically
For reasons already set out at length, absence of article 3 ill-treatment is not conclusive as to the reasonableness of internal relocation. Nor is "the real possibility of surviving economically". But even if that were the only issue to be considered, the evidence relied on by the AIT, the Rapid Assessment Report (as to which see § 44 above) is decidedly unencouraging. The section extracted by the AIT in its §124 shows low levels of employment, sometimes very low levels, in the various refugee camps surveyed. Much better evidence was in our view required before a sensible chance of surviving economically could be assumed.
M is a relatively young man with no known health problems who has experience of working in what appears to be an entrepreneurial capacity, He is not at real risk of Article 3 ill-treatment or of falling below subsistence level, were he to live in a camp or squatter area
The point about article 3 has already been made. Not falling below subsistence level is certainly a requirement if relocation to a camp or squatter area is to count as reasonable relocation, but more needed to be shown before it can be said with the required degree of confidence that NM would avoid the other characteristics of the camps or squatter areas that disqualified them as safe havens.
In fact, we have very little evidence from the appellant G (or appellant H) as to what standard of living was enjoyed in Darfur but, in any event, as the opinions in Januzi make plain, the comparison to be drawn is not between the lifestyle enjoyed by the individual concerned before leaving his home, as compared with what awaits him in the place of relocation but, rather, between conditions in that place and conditions in the country generally
In so saying, the AIT repeated the error to which we have drawn attention in §§ 35-39 above. That reinforces the conclusion that it is necessary to draw that in all three individual cases the AIT applied an analysis that in law was not open to it.
Postscript on "Country Guidance" cases
when [the IAT] determines to produce an authoritative ruling upon the state of affairs in any given territory, it must in our view take special care to see that its decision is effectively comprehensive.
We are of course aware that in R(Iran), supra, this court pointed out that S and others was decided at a time when the jurisdiction of the IAT was not limited to appeals on points of law. However, that Country Guidance cases now can contribute to decisions on issues of law as well as merely of fact would seem to be more, rather than less, reason for care in their compilation.