England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[2007] UKAIT 18

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd April 2008

Lord Justice Lloyd:

1. The appellant, whom I will call AB, lived in Jamaica for the first 21 years of her life. During the last six or seven of those years she had to suffer violence from various different people which, in terms of severity, was accepted below as being capable of amounting to persecution. That is not, and could not be in issue on appeal. Indeed the evidence seems to have suggested that such an experience was all too common on the part of women in Jamaica.
2. She came to this country in 2001 with permission to enter and remain for one year. Later her daughter, who is now 14, joined her here. She overstayed and eventually applied for asylum, which was refused. Her position is that she simply cannot face the prospect of returning to Jamaica, either for her own sake or, perhaps even more so, for the sake of her daughter. She accordingly appealed against the refusal of asylum.
3. Her appeal was successful before Immigration Judge Tiffen in 2005 but the hope of a better and safer life which that afforded her was dashed, when, on the Home Office's application, a reconsideration of the decision was ordered and, at each of the two stages of the reconsideration, the case went against her. The question for us is whether, at either stage of the reconsideration, the Asylum and Immigration Tribunal erred in law. Only if it did can the decision unfavourable to her be set aside.
4. The AIT decision on the second stage of the reconsideration is available as AB (Protection: Criminal Gangs) (Internal Relocation) Jamaica CG [2007] UKAIT 18. The points in respect of which it was a Country Guidance case are not the points which arise on this appeal. Permission to appeal was refused on paper initially but was granted on oral renewal, albeit on limited grounds, by Moses LJ on 25 September 2007. By the two grounds of appeal which were permitted by his order the appellant challenges first the decision at the first stage, that Immigration Judge Tiffen erred in law and, secondly, if that be wrong the AIT's decision at the second stage to dismiss her appeal on the basis of the possibility of internal relocation within Jamaica.
5. The appellant's asylum case is based on the proposition that she has a well-founded fear of persecution in Jamaica for reasons of her membership of a particular social group. The particular social group was identified in her appeal against the refusal of asylum as being women fearing violence from criminal gangs for being suspected of being informants and women fearing domestic violence. Immigration Judge Tiffen said at paragraph 21 that "women in Jamaica are subjected to persecutory treatment by their partners and by criminal gangs as perceived informants."
6. The Immigration Judge held in the following paragraph as follows:

"I find that the appellant has been persecuted for the Convention reason of membership of a particular social group, namely women who are perceived informers and who are unprotected by the state. There is an insufficiency of protection in Jamaica for such social groups."

The Immigration Judge went on to reject the respondent's contention that an internal flight was a viable and reasonable alternative and she therefore allowed the asylum appeal on those grounds.

7. In the course of her determination she placed a good deal of reliance on the Court of Appeal decision in Atkinson v SSHD [2004] EWCA Civ 846. At the first reconsideration hearing this was held to be mistaken and to demonstrate a misunderstanding of the nature and effect of the Atkinson decision. The decision that the appellant was a member of a particular social group as an informer or perceived informer was also said to be a misunderstanding of the nature of the case, and a further error in law identified was the Immigration Judge's failure to consider properly the objective evidence presented or to indicate on what objective evidence the decision was based.
8. On the second stage of reconsideration the AIT expressly left open, at paragraphs 170 to 172, the question whether the appellant was a member of a qualifying particular social group while expressing doubt as to whether she was because, unless the particular social group were defined as women in Jamaica, the scope of the group would almost certainly have to be defined by reference to the perceived risk of persecution.
9. The AIT did not need to decide this because it considered that she had not, in any event, established a well-founded fear of persecution, because even though she would be at risk in her home area, she would be safe elsewhere in Jamaica and it would not be unreasonable for her to be expected to adopt that alternative recourse. I need say no more about the particular social group issue on the second aspect of the case, which is not live on the appeal, although the question of the Immigration Judge's decision on the particular social group is live on the first aspect of the appeal.
10. This is not a case in which issues of credibility arose as regards the appellant's evidence. There were issues before the AIT as to the reliability of some of the expert evidence but that is not a matter which affects this appeal. The factual basis of the appellant's case is summarised at paragraphs 2 and 3 of the AIT decision on the second reconsideration stage and I can conveniently quote that to set the scene:

"2… the appellant began a relationship with F, an area leader of a criminal gang in his area, when she was fourteen. She became pregnant soon after. On occasions F would punch her and she would be bruised. After she gave birth to her daughter in 1994, she moved in with F. We do not identify where the appellant lived precisely, but it was within the Kingston Metropolitan Area… His occasional beatings continued. She was scared of him. He would sometimes disappear and on one occasion he was gone for two-and-half years and she heard he had been in prison. During this time his friends checked up on her. Even so, she began an affair with G and fell pregnant. F found out about this whilst in prison and one of his fellow gang members delivered a letter from him threatening to kill her, the baby and G. The appellant and G decided to separate and let him raise their child with his mother's help. When F came out of prison he tried to rape the appellant and continued to be violent against her; threatening her with a gun on one occasion. She was too afraid to go to the police as she believed F would learn she had informed on him; also she did not think they would do anything. Around 1999/2000 F disappeared and the appellant heard from neighbours that he was suspected of having killed a rival area gang leader from the same gang -- which she thought must be the One Order gang. The appellant never saw him again.

3. A couple of weeks after he had left, two men came to her house wanting to know where F was. They slapped and hit her, accused her of lying and threatened to kill her. They also warned her not to go to the police saying that they would know if she did. The appellant was scared. She and her daughter left the house and moved in with her grandmother, who lived relatively close by. About a week after, they tracked her down. They forced her into a car and took her to the coast where they raped and sexually abused her and also hit her. When they left her they said they were not finished with her. A man stopped his car and took her to her grandmother's. She went to hospital that night and had stitches and was treated as a precaution for gonorreah. Her grandmother was frightened for her and sent her and her daughter to a friend who lived in a rural area, about forty five minutes drive away. She stayed there for several months but did not go out and was too scared to even sit on the veranda. She heard that the gang members kept harassing her grandmother. Her grandmother raised the money for her to flee Jamaica in November 2001. Her daughter followed in July 2002. The appellant was traumatised and did not discuss her experiences with anyone in the UK until she claimed asylum."

11. Thus the appellant suffered violence first from F, originally because that was how he was, and later because of her relationship with G while F had been in prison. Later she suffered violence including rape from people who were looking for F with the threat of further violence including from threats by gang members to her grandmother after the appellant had gone to live in the rural area.
12. In deciding the appeal in favour of the appellant, Immigration Judge Tiffen was much influenced by the decision in Atkinson on the question whether there was sufficient protection in Jamaica. That was a certification decision as to whether the asylum claim was clearly unfounded, not a decision whether substantively it was justified, and I agree with the Asylum and Immigration Tribunal, at the first stage of reconsideration, that Immigration Judge Tiffen erred in law in her reliance on the Atkinson case. I note that in particular she placed considerable reliance on what the Court of Appeal said in the report of that judgment about a report of a Mr Sobers, which had been before it in that case, a report which the Immigration Judge in the present case will not have seen. Mr Sobers did make reports in the present case but not until the later stage of reconsideration.
13. Taking together the Immigration Judge's reliance, as it were by way of hearsay, on what was stated in the judgment of Court of Appeal in Atkinson about the report made in that case, with also her failure to refer to any content of the latest CIPU report, which she had and said she had taken into account but made no reference to it in the course of her decision, it seems to me that the first stage ruling was the subject of an error of law. Moreover there is, to say the least, a degree of confusion and it seems to me plainly an error, in the Immigration Judge's identification of the basis on which she found, at paragraph 22, that the appellant was a member of a particular social group as she said, namely women who are perceived informers and who are unprotected by the state. That was a mischaracterisation and reveals a misunderstanding and misdirection of herself as to the nature of the case made. If reliance were placed on the sentence in paragraph 21 which I quoted earlier, in order to support paragraph 22, that appears, from what I can see, not to be supported by any evidence referred to by the Immigration Judge. At the earlier passages which I have quoted, she sets out the basis of the case made and finds facts as to what had happened to the appellant. That finding showed that she had suffered violence, as I say, with a degree sufficient to constitute persecution but it does not justify by itself the conclusion that this is or would be persecution as a member of a relevant particular social group. The reasoning for that conclusion by the Immigration Judge seems to me to be in paragraph 22 or possibly in paragraphs 21 and 22 and to be legally wrong and unsupported by the evidence.
14. Accordingly, I would reject the first ground of appeal and hold that there was indeed an error of law at that stage and that the reconsideration was correctly ordered and undertaken.
15. The next question is whether the conclusion unfavourable to the appellant which was reached on that reconsideration at the second stage, based on the possibility of internal relocation, was itself legally correct. Additional factual and expert evidence was led at the reconsideration hearing. Some of the fresh evidence from the appellant would be relevant to the issue of a particular social group, but since the decision did not turn on that issue it is unnecessary to go into that aspect of the evidence.
16. Much of the AIT's long determination is devoted to an assessment of the expert evidence of Mr Sobers given in a number of reports at different stages of the reconsideration and in the light of evidence given by him in other such cases. At paragraphs 157 to 166 the Tribunal examined his opinion on internal relocation. Mr Fripp, for the appellant, referred us to some passages within that section of the determination but I think it is sufficient to focus on the later passage in which the Tribunal addressed the question by reference to the facts of the particular case. At that stage the Tribunal embarked, starting at paragraph 173, on the facts of the appellant's case and the nature of the case addressed to the Tribunal. They held that the appellant had shown past persecution. They said, at paragraph 177, that the appellant would not be a target any more for members of the gang who had attacked her in 1999 or 2000, for reasons which they state and which I need not expand on.
17. However, at paragraph 178 they accepted that if she returned to her home area, an area within the Kingston Metropolitan area, there would be a real risk that her return there would be communicated to F and that it was reasonably likely that if she went back to her grandmother's home, F would learn of her return. They then said this:

"We are just persuaded also that, by virtue of her subjective fears and her traumatised state, she would not be able to seek the protection of the police and so would not be able to benefit from available assistance under the Witness Protection programme: we do not find it reasonably likely that she would approach the police in order to be admitted to it. We accept therefore that inside her home area she would face a real risk of persecution at [the hands of F] or the hands of his associates again, sooner or later."

18. I need not consider whether that attention and that risk would satisfy the particular social group requirement. The Tribunal then dealt with relocation. At paragraph 179 they stated:

"However, we do not consider that the appellant would face a real risk of persecution if she relocated to another part of Jamaica."

In that quite long paragraph they go into an assessment of the facts which led them to that conclusion, and that is not a passage which is challenged on appeal.

19. They then turn to the next point which is the point of issue on the appeal, at paragraph 180, which is as follows:

"There remains the question of whether, even if the appellant would not face a continuing risk of persecution, it would be unreasonable or unduly harsh in her case to expect her to relocate."

Then in the course of the remainder of the determination, the Tribunal addressed a number of different points in respect of which it had been argued that it would be unreasonable or unduly harsh to expect the appellant to relocate to a different area of Jamaica outside the Kingston Metropolitan area where the Tribunal held that, for the reasons given at paragraph 179, she would in fact be safe from the persecution which she feared.

20. These points are covered in paragraphs 181 to 186. The first of them concerns the absence of social welfare support, which is covered at paragraph 181 to 183. At paragraph 184 the Tribunal turned to the appellant's vulnerable psychological state. At paragraph 185 it dealt with a point made in one of Mr Sobers' reports, concerning the risk the appellant would face by virtue of being labelled as a deportee; and at paragraph 186 they addressed concerns of the appellant, arising in connection with not only her own position but that of her daughter.
21. At paragraph 187, having dealt with those four points in turn, the Tribunal said this:

"Even considered cumulatively we do not think that the appellant's and her daughter's circumstances, as we have identified them, would make relocation an unduly harsh or unreasonable option for them."

22. At paragraph 188 they dealt with a submission of the appellant's advocate that the appeal should be allowed on Article 8 grounds, even if it were dismissed on Article 3, asylum and humanitarian protection grounds. The Tribunal expressed the view, which has not been questioned before us, that the same issues arose whether one was considering, on the facts of the present case, asylum or humanitarian protection, Article 3 or Article 8, and it is therefore not necessary to consider any of those matters separately and the Tribunal accordingly considered that the Immigration Judge had materially erred in law and they substituted the decision to dismiss the appeal on asylum grounds, on humanitarian protection grounds and on human rights grounds.
23. The question on the second ground of appeal is whether, in that part of its decision, the Tribunal misdirected itself in law. Mr Fripp identified the misdirection, in his oral submissions today, as being above all a failure to address the question whether the appellant could lead a relatively normal life in the area to which she would have to relocate, when judged by the standards prevailing in Jamaica generally. He accepts that "unreasonable or unduly harsh", as enunciated at paragraph 180 of the Tribunal's determination, is the correct test but he submits that it has to be applied to the particular facts by reference to what I might call the "relatively normal life" criterion.
24. He cited to us several cases on this point but I do not consider that it is necessary to go any further back than the case of Januzi v Secretary of State [2005] UKHL 5; [2006] 2 AC 426. That in turn has been supplemented by AH (Sudan) v Secretary of State [2007] UKHL 49 [2007]; 3 WLR 832. In Januzi, at paragraph 21, Lord Bingham summarised the correct test by way of guidance in the decision of that case, in terms with which all other members of the court agreed as follows:

"The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so…There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department [2002] EWCA Civ 74 [2002] 1 WLR 1891, para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls…All must depend on a fair assessment of the relevant facts."

25. He quoted that passage in paragraph 5 of his speech in AH, and having done so he continued as follows:

"Although specifically directed to a secondary issue in the case, these observations are plainly of general application. It is not easy to see how the rule could be more simply or clearly expressed. It is, or should be, evident that the inquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant. There is no warrant for excluding, or giving priority to, consideration of the applicant's way of life in the place of persecution. There is no warrant for excluding, or giving priority to, consideration of conditions generally prevailing in the home country. I do not underestimate the difficulty of making decisions in some cases. But the difficulty lies in applying the test, not in expressing it. The humanitarian object of the Refugee Convention is to secure a reasonable measure of protection for those with a well-founded fear of persecution in their home country or some part of it; it is not to procure a general levelling-up of living standards around the world, desirable though of course that is."

26. It is also necessary, in the light of Mr Fripp's submissions and given the terms of the AIT's determination, to consider paragraph 20 of Lord Bingham's speech in Januzi. In that paragraph, which of course led up to what he said in paragraph 21, having said that he would dismiss the appeals he went on to consider how to offer guidance to the decision makers on the approach to reasonableness and undue harshness in this context. In so doing, he quoted from the UNHCR Guidelines on International Protection of 23 July 2003. He quoted in particular a test posed in the course of those guidelines as follows, "Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?" and the comment in relation to that question, "If not, it would not be reasonable to expect the person to move there."
27. He then quoted two longer passages from the guidelines, one directed to respect for human rights and the other directed to economic survival. I note that in the course of the second of those passages the guidelines include this sentence.

"It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence."

Having quoted those passages he said this:

"These guidelines are, I think, helpful, concentrating attention as they do on the standards prevailing generally in the country of nationality"

Then he said he also found helpful a passage in an article by Dr Storey, The Internal Flight Alternative Test: The Jurisprudence Re-examined [1998] 10 International Journal of Refugee Law 499 at 516, on socio-economic factors. That passage, which I do not need to quote here, since it is set out in Lord Bingham's speech, also refers to a variety of circumstances in which the economic circumstances of the claimant, hypothetically relocated to a safer part of the country, might or might not demonstrate that relocation would be unreasonable or unduly harsh. In the course of that the phrase "utter destitution" is mentioned.

28. Lastly, in my quotations from Januzi, I refer to Lord Hope, at paragraph 47 where he said, in the last sentence of the paragraph:

"If the claimant can live a relatively normal life there [that is to say in the less hostile or more safe area] 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 reference to hostility is explicable in the context of the facts of the particular case, namely the refugees from Darfur and the question of whether they could reasonably be expected to relocate to Khartoum.

29. Reference was also made in submissions to us to a passage from Lord Brown's speech in AH at paragraph 42, which it is appropriate for me to quote at this point.

"Hard-hearted as this may sound, and sympathetic although inevitably one feels towards those who have suffered as have these respondents (and the tens of thousands like them), the Refugee Convention, as I have sought to explain, is really intended only to protect those threatened with specific forms of persecution. It is not a general humanitarian measure. For these respondents, persecution is no longer a risk. Given that they can now safely be returned home, only proof that their lives on return would be quite simply intolerable compared even to the problems and deprivations of so many of their fellow countrymen would entitle them to refugee status. Compassion alone cannot justify the grant of asylum."

30. Mr Fripp's submission is that the AIT went wrong in law when they proceeded from a correct statement of the test in paragraph 118 straight to a consideration of particular respects in which it was said that life in relocation would be such as to make it unreasonable and unduly harsh, without asking itself in terms whether the appellant could live a relatively normal life there, by local standards, and without considering the facts of her hypothetical relocated life in the round.
31. It seems to me that that submission cannot stand examination in the light of paragraph 5 of AH. It is plain that paragraph 20 of Januzi does not set out a model or prescribe how a decision maker should proceed. It is not wrong to take as a first topic the question of lack of social welfare if that is one of the factors of importance on the facts of the case. Nor is it a misdirection not to refer in terms to the "relatively normal life" criterion. It is plain from what Lord Bingham said that the test that he enunciated at paragraph 5, which has in itself made reference to "a relatively normal life", is one which needs to be addressed by decision makers in relation to the facts of a particular case and, accordingly, by reference to those aspects of the facts which are said to make it to be relevant to the question of unreasonableness or undue harshness.
32. Plainly a decision maker faced with a case in which reliance is based on a number of different factors is likely to need to address those various factors separately but also to look at the matter cumulatively, but that is exactly what this Tribunal did, and it seems to me that Mr Frith has failed to identify any misdirection in the terms of the general approach of the AIT to the question of unreasonableness or undue harshness of relocation in paragraphs 180 to 187.
33. He had a separate point about how the AIT dealt with the issue of lack of social welfare support, in which he relies on paragraph 183 of the determination, which is as follows.

"In any event, the test we have to apply is not whether there would be a lack of social welfare support, but whether in the appellant's and her daughter's particular circumstances, there would be virtual destitution: see Januzi."

34. It seems to me clear that this is not, nor is it intended by the Tribunal as, a statement of the general test, which is that of unreasonableness or undue harshness as stated by the Tribunal at paragraph 180 and addressed by them at 187. It is given as a comment by reference to one aspect of the appellant's case on the point, namely lack of social welfare support. The reference to Januzi, although not specifically identified, is to the second and third passages quoted by Lord Bingham in paragraph 20 of his speech in that case, one from the UNHCR guidelines and the other from Dr Storey's article, both of which do indeed mention destitution. Given that Dr Storey was a member of the AIT which came to this determination we can take it that the AIT knew extremely well both the relevant quotations and what Lord Bingham said about them.
35. It is, nevertheless, a fair comment that to say that "destitution is the test" is oversimplified and could lead into error a reader who did not pursue the cross-reference to Januzi, but I take that passage as no more than a shorthand reference to the whole content of the two passages quoted by Lord Bingham in the course of paragraph 20 of his speech and to the context of that paragraph itself. I do not take it as a statement by the Tribunal in a definitive manner that there is a test which is virtual destitution. In any event, the AIT had already said, in paragraphs 181 and 182, that the appellant had failed to show that her life in a safe area would be too harsh because of lack of economic support. That is a conclusion on the evidence which is not and cannot be challenged, and that is the finding which has to be considered by itself and as part of the overall position by the AIT in addressing the issue finally.
36. A separate point taken in the Grounds of Appeal was as to the appellant's need to conceal herself. This is not a reference to the sort of concealment encountered in some cases where, for example, danger may arise to a claimant from given ethnicity such that if, as suggested, he or she relocates to a different area within the country of nationality, the person in question would have to conceal and lie about that factor. There is no problem for the appellant in not disclosing her previous association with F or the unwelcome attention that the gang members paid to her. As the AIT said at paragraph 179, she would want, and she would be able, not to disclose those associations. Her fear was that she would not succeed keeping them a secret, but she would certainly wish to keep them secret and she would face no need herself to disclose them. Rather it is a reference, as I understand it, to her having hidden herself away, as she is said to have done, during her one period of relocation mentioned in the passage summarising the facts which I quoted earlier in this judgment.
37. There is no error of law in the Tribunal's failure to focus on that in terms, rather than on her psychological state generally (at paragraph 184) and the issue of her safety and that of her daughter generally (at paragraph 186). Thus, I cannot accept that the AIT misdirected itself either by not posing in terms the "relatively normal life" test or in what it said at paragraph 183 about the relevance of destitution.
38. Otherwise it seems to me that the appeal is essentially a challenge to findings of fact, which is not a legitimate basis of appeal because it cannot show an error of law. Accordingly, while I can see that the prospect of return to Jamaica faced by the appellant is, to use words of considerable understatement, most unattractive, I am unable to find any error of law in the decision of the AIT on the reconsideration and I would therefore dismiss this appeal.

Lord Justice Carnwath:

39. I agree.

Lord Justice Sedley:

40. I also agree.

Order: Appeal dismissed