QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| SUSAN MANSANI
|- and -
|IMMIGRATION APPEAL TRIBUNAL and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Steven Kovats (instructed by The Treasury Solicitor) for the Defendants
Crown Copyright ©
Mr Justice Beatson :
(1) The history of these judicial review proceedings
(2) The Adjudicator's Decision
(3) The Challenge to the decision of the IAT
"When considering whether it is reasonable for an asylum seeker to relocate in a safe haven, in the sole context of considering whether he enjoys refugee status, we cannot see how the fact that he will not there enjoy the basic norms of civil, political and socio-economic human rights will normally be relevant."
His Lordship also stated:
"States may choose to permit to remain, rather than to send home, those whose countries do not afford these rights. If they do so, it seems to us that the reason should be recognised as humanity or, if it be the case, the obligations of the Human Rights Convention and not the obligations of the Refugee Convention".
(1) The consideration of immigration applications and appeals should distinguish clearly between the right to refugee status and the right to remain by reason of rights under the European Convention on Human Rights: AE and FE v Secretary of State for Home Department, paragraph 67.
(2) The jurisprudence on internal flight, including the decisions in Karanakaran v Secretary of State for the Home Department  3 All ER 449 and R v Secretary of State for the Home Department, ex p. Robinson  QB 929, concerns the right to refugee status.
(3) In view of AE and FE v Secretary of State for Home Department any failure by the Adjudicator specifically to consider whether returning the claimant to Khartoum would be "unduly harsh" because it would expose her to the risk of treatment that violates Article 3 of the Human Rights Convention is not arguably wrong in relation to the contention that she qualified as a refugee.
(4) In the present case, the Adjudicator considered whether returning the Claimant to Sudan risked a breach of Article 3 of the Human Rights Convention. He thus considered whether she had a right to remain under the Human Rights Convention. He concluded that, although her life could well be very hard and might be a life of poverty and hardship, on the objective evidence and the evidence relating to her position, he did not consider that, were she returned to the Sudan, her treatment would be inhuman or degrading so that returning her would be a breach of Article 3. In the context of the consideration of the Claimant's rights under the Human Rights Convention, an omission to consider the specific approach based on the jurisprudence on internal flight is not arguably wrong. That jurisprudence is concerned with determining refugee status not rights under the Human Rights Convention.
Accordingly, I consider that, had this argument been open to the Claimant, it would not have exposed the Adjudicator's decision as arguably open to criticism on public law grounds..
(4) The Challenge to the Secretary of State's decision of 30 October 2003
"… with regard to the safety of returnees where asylum claims have been unsuccessful, there are several sources of potential risk. An administrative decree of 28 February 1993 issued to border entry points, authorised the arrest of all returning Sudanese who left after the June 1989 coup and who have been away for more than a year. Such individuals are according to the decree subject to 'investigations' and 'necessary security measures'."
In reply Mr Juss pointed to the statement that:
"Further factors to be taken into account are the dangers opposed where Southern Sudanese who hail from the South are returned to Khartoum. Such persons may be placed in camps for the internally displaced and would likely be compelled to contend with harsh living conditions and physical insecurity".
(5) The Challenge to the Certificate
"An appeal under section 82(1) against an immigration decision in respect of a person may not be brought or continued if the Secretary of State or an immigration officer certifies that the immigration decision relates to an application or claim which relies on a ground which the person-
(a) raised on an appeal under that section against another immigration decision,
(b) should have included in a statement which he was required to make under section 120 in relation to another immigration decision, or
(c) would have been permitted or required to raise on an appeal against another immigration decision in respect of which he chose not to exercise a right of appeal."
The amended claim form and Mr Juss's skeleton argument mistakenly address Section 96(1) which is not of relevance. In his oral submissions Mr Juss submits that with regard to facts that have emerged since the Adjudication and appeal to the Tribunal, in particular the change in the Claimant's personal situation it is not possible to say that the case was manifestly unarguable. He also relies on the facts found by the Adjudicator concerning the Claimant's position on any return to Sudan because she was a southerner who did not speak the language, who would be displaced and in Khartoum a part of the country of which she knew nothing, and the fact that the earlier claim had not been certified.
MR JUSTICE BEATSON: In this case I am grateful to both of you for your submissions about the draft. I have accepted all of your corrections and I have made a deletion from paragraph 17 and an addition to paragraph 27. The deletion just relates to the way the argument was put on flight and the addition is just an additional section from the letter that Mr Juss relied on in the response. I thought it was right to set that out. So, for the reasons given in the judgment which I hand down, the application is dismissed.
MR JUSS: My Lord, I make an application for permission to appeal on two bases. The first, my Lord, is this: as you will see from your own judgment at paragraph 19, now that the case of AE and FE has been introduced to the argument, the position is this, that the last time that the House of Lords looked at this in Yogathas, it was of the view, as I have said in my responses to your Lordship's directions in relation to AE and FE and I quote from my paragraph 12 where Lord Scott said, my Lord:
"This is not a question of interpretation of information but a question of a judgment as reasonable in all the circumstances of the evidence ..."
My Lord, all I say in this regard is, as I understand it, the case of AE and FE has a reputation at the House of Lords. It is very likely that permission will be given. But it may be that what we have here is the Court of Appeal speaking with two voices. You have Robinson and Karanakaran on the one hand, you have AE and FE on the other, and you have Yogathas and what Lord Scott says in that case.
It is significant, my Lord, that if one looks at his Lordship's judgment in AE and FE, just before paragraph 67, he talks in terms of developing jurisprudence now that the Human Rights Act has been produced, he talks about the British practice and he says, in that context, that it may well be right to posit the position that he has posited. My Lord, it is plain from that context that he is constructing this argument in the context of developing jurisprudence. All I say, my Lord, is that a position on internal relocation will have to be resolved on way or the other. It may be resolved by the Court of Appeal or, likely, by the House of Lords when permission is given in AE and FE. Given that is the case, my Lord, I do venture to suggest that it would be appropriate for permission to be given on that basis.
My Lord, my second point is that even in the context of AE and FE, as your Lordship has said at page 12 of the judgment in paragraph 20(4), what AE and FE says is that under the new position that the House of Lords posits, which is if one is looking at the refugee convention, the question of relocation does not transpire in relation to a person in this position in England and a person back in Sudan. It only transpires when one is looking at the human rights argument. Only then can you begin to apply the argument that return would be unduly harsh, given the comparison is between this applicant in Sunderland and the position in Khartoum. My Lord, plainly on the basis of what you have found, set out at paragraph 8, which was that she would be a displaced person with no home, no relatives, no support, it is highly arguable that the human rights argument under Article 3 is kicked into effect. The term, on that basis, is going to be quite plainly disproportionate.
I will just say, in ending, your Lordship has said in your Lordship's judgment that the decision that was reached by the Adjudicator was plainly open to the Adjudicator. Your Lordship was the first to recognise that, not only as jurisdiction but as an act of scrutiny, but the Wednesbury principle does not apply in the context of human rights. It is proportionality when one is looking at the human rights argument.
MR JUSTICE BEATSON: What I meant was that it was open to him on the appropriate daily standard.
MR JUSS: My Lord, if the Adjudicator had not found what he did find then, of course, one might well have taken the position that your Lordship has taken and the Adjudicator has taken. What we say is that it ill befits him to have made a finding that she is returning to no home and that the UNHCR matter, in fact, concludes that she is very likely to be in that position. What we say is simply that --
MR JUSTICE BEATSON: That is the argument that you mounted the judicial review on.
MR JUSS: Yes, my Lord. Those are my submissions.
MR KOVATS: My Lord, the Secretary of State opposes permission to appeal on three grounds. First, while it is correct that the appellants in AE and FE have petitioned the House of Lords, it is pure speculation as to whether or not permission would be granted and (Inaudible) and the fact that somebody has put in a petition to the Lords does not amount to it being granted.
Secondly, and more fundamentally, internal relocation simply does not arise on the facts of this case, as your Lordship has found. This was not the way the case was put before the Adjudicator and your Lordship has found it was too late for the case to be changed at this late stage. Thirdly, it does not arise on the facts, for further reason, that AE and FE is only concerned with the refugee convention. The only live claim by this appellant is in relation to Article 3 of the European Convention on Human Rights, on which AE and FE has no bearing. For those three reasons, we say, it would be wholly inappropriate to allow further time to be strung out on a case that has already been delayed far too long.
MR JUSTICE BEATSON: I am grateful.
MR JUSS: My Lord, can I just come back very briefly to that. Internal relocation was, my Lord, brought as an argument following the directions of Sullivan J on 8th July. It is set out in the witness statement under the heading "feasibility return" which focuses entirely on return to Khartoum. Of course, as I say, the word legal test of undue harshness is not used. It is plain that one is looking at relocation to Khartoum and one is arguing against that relocation to Khartoum.
MR JUSTICE BEATSON: Well, the witness statement was with the representations to the Home Secretary.
MR JUSS: That is right. It was the form of representations and, of course, the skeleton argument also talked about why return to Khartoum might not be feasible. The second point, if my learned friend says that AE and FE was only concerned with the refugee convention, that is all the more reason why permission should be granted because this is a case not just to do with the refugee convention, it is to do with (Inaudible). That is a point that has not been considered in AE and FE and permission should now be given on this case as a fresh pursuit.
MR JUSTICE BEATSON: I am very grateful. Mr Juss applies for permission to appeal my dismissal of the judicial review proceedings. I am going to refuse permission. You will have to go to the Court of Appeal and I will just, in the interests of transparency, although you will not see it, on the form I shall state, first of all, that the ground of appeal has to do with the internal relocation argument which I found it was too late to raise, and that what is said about AE and FE is not necessary to my judgment. In any event, it is for the Court of Appeal to decide whether they want to revisit any difference between AE and FE and Robinson and the other cases.
MR JUSS: I am grateful. It only remains for me to apply for the normal Legal Aid --
MR JUSTICE BEATSON: Yes, you are entitled to that. I am grateful.