QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| The Queen on the Application of Maryam Umar
|- and -
|The Secretary of State for the Home Department
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Mr David Blundell (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 1st October 2008
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The Deputy Judge:
i) was there sufficiency of protection for Mrs Umar in her country of origin, Nigeria? And
ii) was there a possibility of internal relocation within Mrs Umar's country of origin?
Lord Phillips MR held at paras 56 and 57 that the test as to whether a claim was clearly unfounded was an objective one which depended not on the Home Secretary's view but upon a criterion that the court can readily re-apply once it has the material before it which the Home Secretary had.
Lord Phillips MR said
"The decision maker will –
i) consider the factual substance and detail of the claim
ii) consider how it stands with the known background data
iii) consider whether in the round it is capable of belief
iv) if not, consider whether some part of it is capable of belief
v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention.
If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not".
"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 consists of acts of violence or ill treatment against which the state is unable or unwilling to provide protection. The applicant may have a well founded fear of threats to his life due to famine or civil war or of isolated acts of violence or ill treatment for a Convention reason which may be perpetrated against him. But the risk, however severe, and the fear, however well founded, do not entitle him to the status of a refugee."
"In my judgement there must be in force in the country in question a criminal law which makes violent attacks by the prosecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from protection of the law. There must be a reasonable willingness by the law enforcement agencies that it to say the police and courts to detect, prosecute and punish the offender."
"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……All must depend on fair assessment of the relevant facts."
"The question where the issue of internal relocation is raised can, then, be defined quite simply. As Linden JA put it in Thirunavukkarasu v Canada( Minister of Employment and Immigration) (1993) 109 DLR (4th) 682, 687, it is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words "unduly harsh" set the standard that must be met for this to be regarded as unreasonable. If the claimant 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."
Sufficiency of Protection
"[T]he persecution with which the Convention is concerned is a persecution not countered by sufficient protection….the concept of encouragement or toleration on the one hand may be seen as expressing the same thing and the failure by the state to provide adequate protection. A toleration which amounts to a constructive persecution by the state and the failure by the state to provide adequate protection may be two sides of the same coin. It may be permissible to use language of a failure of protection against abuse as an equivalent to an encouragement or toleration of the abuse or to an acquiescence of it."
"women's rights defenders working to protect victims of domestic violence have been threatened by family members of victims and that these threats are not often appropriately addressed by the police. The report provides the example of an activist who assaulted a victim's husband in front of a police station, an incident that was not addressed by the police."
"the United Nations Commission on Human Rights Report of the Special Rapporteur on extra judicial summary or arbitrary executions, dated January 2006 adds:
'The Nigerian police have grown significantly under civilian rule to 325,000 in 2005. But numbers are still inadequate, their level of training and funding insufficient, and their morale low. Although Nigeria suffers from high violent crime rates the force is chronically under resourced. All too often new recruits have to pay for their own uniforms, salaries may be delayed for many months, equipment required in an emergency needs to be borrowed from other agencies, and complainants (even those alleging murder) are asked to cover the costs of the police investigation, including travel and accommodation. Where they cannot afford to do so, the investigation fizzles. In addition, corruption is widespread amongst police officers in part due to very low salaries'."
"According to the Minister of Internal Affairs, Dr Iorchia Ayu there is no longer any state persecution in Nigeria. Persons that encounter any difficulties from non state agents are able to relocate internally. There is free movement for all citizens within the country. Those who travel overseas to claim asylum have no reason to do so. Although claiming asylum overseas reflects badly on the country returnees will not encounter any problems on return."
Paragraph 7.08 continues,
"The viability of an internal relocation alternative therefore depends on whether anybody would be interested to follow someone to e.g. Lagos. It is very hard to make a general statement for such cases. People might be able to relocate if they have run into trouble with a rival ethnic community or vigilante group or if they flee violent conflict."
"One federal government official in Abuja told Human Rights Watch: ' I don't have any problem with the idea of moving to another place and being discriminated against, because I know that if these people move to my home the same thing will happen to them.' And one member of parliament from the southwest of the country confessed that he even found it difficult not to discriminate against his own non indigene constituents. "