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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 15
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OPINION OF C J MacAULAY,
QC
Sitting as a
Temporary Judge
in the Petition of
ANDREI IVANOV
Petitioner:
against
THE SECRETARY OF
STATE FOR THE HOME DEPARTMENT
Respondent:
For
JUDICIAL REVIEW
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Devlin; Drummond Miller, W.S.
Respondent: Lindsay; C Mullin
31 January 2008
Introduction
[1] This
is an application for judicial review of a decision of the Immigration Appeal
Tribunal ("IAT") dated 12th March 2003 refusing the petitioner leave
to appeal against the determination of an adjudicator dismissing the
petitioner's appeal against the respondent's decision in refusing the
petitioner's application for asylum. The
petitioner seeks reduction of the IAT's decision.
[2] The
petitioner (DOB 9.11.83) is a national of Moldova. He entered the United
Kingdom illegally in the back of a lorry
with his younger sister who is to be treated as his dependant in his
application for asylum. He claimed
asylum on 16 July 2002. The respondent refused that application for
asylum and gave reasons for that refusal in a letter dated 1 September 2002.
The petitioner appealed to the adjudicator arguing that he had a well
founded fear of persecution under the 1951 UN Convention Relating to the Status
of Refugees ("the Refugee Convention") and that removal would breach his rights
under Articles 3 and 8 of the European Convention on Human Rights ("ECHR"). The Adjudicator refused the petitioner's appeal.
[3] In
refusing the petitioner's application for leave to appeal, the IAT concluded
that there was nothing in the grounds of appeal presented to it to indicate a
real prospect of success for an appeal.
[4] Parties
were agreed that, if the petitioner's challenge against the decision of the IAT
was well founded, I should pronounce an order reducing that decision. It would follow from such an order that the decision
of the IAT would by rendered void ab initio
and the petitioner's appeal would be deemed to be a pending appeal and fall to
be reconsidered by another tribunal.
Background
[5] The basis upon which the
petitioner sought asylum can be shortly stated.
[6] Before
leaving Moldova
the petitioner lived in the area of Balti with his sister and grandmother. His grandmother died in June 2002 shortly
before he left Moldova. Both his parents had been killed in a car
accident in 1987. He worked the family
farm.
[7] The
petitioner is a homosexual. He kept his
homosexuality secret until the spring of 2002 when he formed a relationship
with another man called Vladimir
who also lived in Balti. On one occasion
he and Vladimir went into a shop holding hands having decided that they were
tired of keeping their sexual orientation secret. The shop assistant, having seen that the
petitioner was holding hands with Vladimir,
telephoned the police. On seeing the
police coming the petitioner ran away.
[8] The
petitioner was traced by the police.
Three policemen came to his home and took him to a police station
accusing him of having a sexual relationship with a man. He was assaulted by the police and told to
leave the town otherwise he would be killed and his house would be burnt
down. Thereafter the police arrested the
petitioner at his house on several occasions and on each occasion detained him
for a period of time and assaulted him.
It seems also that the local people in the area turned against the petitioner
once they realised that he was a homosexual.
[9] The
petitioner's application for asylum was refused by the respondent on two main
grounds. Firstly, the respondent took
the view that being homosexual did not engage the United
Kingdom's obligations under the Refugee Convention. That being so it followed that the
petitioner's claim for asylum was not based on a fear of persecution in Moldova
because of race, religion, nationality, membership of a particular social group
or particular political opinion.
Secondly, the petitioner's application was refused because the
respondent did not find his account credible, and, in particular did not
believe that the homosexual relationship that the petitioner claimed had led to
his departure ever took place.
[10] In relation to those two broad grounds of refusal the
adjudicator took a different view. He
was of the view the respondent's decision that being a homosexual did not
engage the United Kingdom's
obligations under the Refugee Convention was wrong and that a fear of
persecution because of sexual orientation was a fear of persecution as a result
of membership of a particular social group.
Counsel for the respondent did not seek to resurrect that issue. In relation to the respondent's second ground
of refusal, the adjudicator accepted the petitioner's account that he had been
persecuted because of his homosexuality and was able to make a number of
findings in fact (paragraphs 7-21 of his determination) based upon the evidence
given by the appellant and his sister.
[11] The adjudicator described the background material in the
following way:
"26. I shall now deal with the objective
background material. The objective
background material before me in this case is made up of the Country
Information and Policy Unit Bulletin on Moldova, a lengthy report from the
Moldovan Helsinki Committee for Human Rights, a report from Amnesty, various
news reports covering the activities and comments of GenderDoc-M, Moldova's
only gay and lesbian organisation, a document drawn from the internet and an
article taken from Monthly Review. I give
the greatest weight to the documents from the Country Information and Policy
Unit, the Moldovan Helsinki Committee for Human Rights, and Amnesty. Reports from Amnesty and the Country
Information Policy Unit are recognised as objective and well sourced. The report from the Moldovan Helsinki Committee
for Human Rights seems to me to be extremely comprehensive and again strikes me
as objective and well sourced. The
articles dealing with the comments and views of GenderDoc-M in my view have to
be treated with greater caution.
GenderDoc-M is clearly a campaigning organisation working towards the
improvement of the position of homosexuals in Moldova. That is of course a laudable aim but does
mean in my view that there is a danger of much of what that organisation says
being partisan and more in the line of advocacy than truly objective. The document drawn from the internet contains
a number of comments by homosexuals in Moldova,
posted on the internet. While these are
useful it seems to me that not much weight can be placed on them. They can hardly be described as
objective. Mr McGlashan sought to rely
on the article from the monthly review to establish that the former Communist
Party has returned to power in Moldova. I am happy to accept that document vouches
that."
[12] The adjudicator then discusses the information contained in the
background material referred to in the preceding paragraph. He concludes that arbitrary detention and
ill-treatment by the police are matters which continue to be reported in Moldova
and that the Amnesty Report in particular reported that many criminal suspects
were ill-treated and in some cases tortured.
Furthermore, he concludes that relatively few complaints are lodged
because people feared reprisals or that grievances would not be addressed
effectively. He also concludes that the
Moldovan Helsinki Committee for Human Rights makes reference to a large number
of cases where the Police had abused the detainees with very little being done
to deal with those police officers who had abused their power even although
complaints had been made.
[13] Notwithstanding his reservations about the GenderDoc-M material
he does extract the following information from it:
"29. The views and experiences of GenderDoc-M
outlined in the reports produced include the following. Although in 1995 the article of the Penal
Code which provided for imprisonment for homosexual intercourse was abandoned
sexual minorities still live in fear.
Homosexuals keep their sexual orientation secret. There have been cases where the Moldovan
police have blackmailed gay people. The
Moldovan police have been known to beat up and rob homosexuals. One event being organised by GenderDoc-M was broken up by about 12 policemen
accompanied by the local commissioner of police, a Mr Covali who was reported
as saying after this that homosexuals are outside the law, are criminals and
should not be allowed to have meetings and assemblies. Homophobia is deeply routed in Moldovan
society in general and among public authorities, politicians and the law
enforcement authorities. The Moldovan
Orthodox Church is very influential and has promised to excommunicate all
homosexuals."
[14] It was in that context that the adjudicator considered the
petitioner's credibility. In relation to
that he had this to say:
"32. The Appellant has given a consistent
account. He has given an account which,
when considered in the context of the background material, could be true. For all that homosexuality is legal in Moldova
there appears to me to be deep routed feelings against homosexuality in large
sections of the Moldovan population.
There have been instances of the police beating homosexuals. All of this renders the Appellant's claim
that Vladimir did not reveal his
full name, occupation or home address to him more likely than might otherwise
have been the case. The Appellant was
cross examined about his account and maintained his consistency in cross
examination. His account was supported
by his sister. While she might well be
seen to have an interest in the outcome of this appeal, her account was
consistent with that of her brother and she
maintained that consistency under cross examination."
[15] It was against that whole background that the adjudicator was
able to make the findings in fact he made at paragraph 7-21 of his determination. One of his numbered findings in fact is in
the following terms:
"8. Neither he nor his sister have been to
school. He worked the family farm. He was persecuted because of his
homosexuality. In Moldova
homosexuals are beaten by the police and people generally insult homosexuals."
[16] It is to be noted that the last sentence in that numbered
finding is in general terms and consistent with the information he obtained, in
particular, from the GenderDoc-M material.
[17] Against that background, the adjudicator went on to say:
"34. The appellant has established that he was
beaten by the police on 7 or 8 occasions over a period of a few months. Regular beatings of the sort described by the
appellant amount to persecution and a breach of Article 3 of the Human Rights
Convention. This past ill-treatment is
in my view probative of there being a real risk of the appellant again being
ill-treated in this way by the police in his home area. It is therefore necessary to look to see
whether there is a sufficiency of protection for the appellant and whether
internal flight might provide an answer ...
36. The Country Information and Policy Unit
document tells me that no pattern of discrimination has emerged in the judicial
system and the law on Parliamentary Advocates of October 1997 created 3
positions of Parliamentary Advocates (Ombudsmen) who were empowered to examine
claims of human rights violations and advise Parliament on human right
issues. The report however does not tell
me what powers these advocates may have.
37. Homosexuality is now legal in Moldova. The police officers who were engaged in
beating the appellant were therefore not engaged in any official action. They are however state agents for all they
were not involved in persecuting the appellant on behalf of the state. In examining whether there is a sufficiency
of protection in place in such a case it is necessary to see what mechanisms
the state has in place to counter such an abuse of power and whether the state
is able to respond quickly to complaints of such an abuse of power.
38. Several factors have led me to the
conclusion that in the context of the ill-treatment the appellant risks
suffering at the hands of the police in his home area it cannot be said that
there is a sufficiency of protection in place for the appellant. The first of these is an apparent delay on
the part of the authorities in dealing with complaints about police brutality
highlighted by the cases referred to in the report of the Moldovan Helsinki
Committee for Human Rights at pages 16-19.
That report also refers to a case (which is also referred to in the
Amnesty Report) where one police officer who had been complained against was in
a position to re-arrest the person who had complained about him and detain him
for a period. The second point is that
the background material does support the general proposition that homophobic
views are held by senior police officers and judges. The comments of the Supreme Court of Justice
and the actions of the Commissioner of Police who stopped a meeting of
homosexuals taking place and his comments thereafter all strongly indicate
that. On this evidence it does not seem
to me that the protection on offer to the appellant against the police who
abused him in the past can be said to be sufficient."
[18] Having arrived at that conclusion the adjudicator then went on
to consider the issue of internal flight.
It is apparent from what the adjudicator says that that was an issue
which had not been addressed in the submissions made to him.
[19] The relevant paragraphs of the adjudicator's determination on
the issue of internal flight are as follows:
"41. Although there are reports of police
committing human rights abuses against homosexuals I do not read the background
material as indicating that this is so widespread a problem that homosexuals
cannot live anywhere in Moldova
in safety. GenderDoc-M for example
exists and is operating openly. It seems
to me on this evidence that the appellant became the victim of a group of
misguided police officers in his local area.
While I am not satisfied on the evidence before me that the Moldovan
state would offer appropriate protection to the appellant were these officers
to repeat their conduct it seems to me that were the appellant to relocate to
another area of Moldova the risk of the appellant again having to endure
conduct of this sort would be avoided.
42. The next point to consider therefore is
whether it might be unduly harsh to expect the appellant to relocate in Moldova. Unemployment is certainly high in Moldova. He is however a young man and would not be
disadvantaged on the labour market.
While he would not be able to return to his home area to resume his
relationship with Vladimir, Vladimir
has not accompanied the appellant to the United
Kingdom and the appellant has not had any
contact with him since he arrived here.
His relationship with Vladimir
therefore terminated when he came to the United
Kingdom.
While in my view the evidence does not show that the appellant would be
at risk of again encountering treatment amounting to persecution in areas of
Moldova outwith his home area the evidence does establish in my view that he
would be subject to discrimination and criticism, at times trenchent, because
of his homosexuality elsewhere in Moldova.
The evidence does establish in my judgement that there is a strong
anti-homosexual current in Moldova. The discrimination and criticism which the
appellant risks facing would not however in my view amount to persecution or a
breach of Article 3. Nor in my view
bearing in mind the United Kingdom's
right to exercise immigration control, would it amount to a breach of any other
article of the Human Rights Convention.
43. In the whole circumstances I do not
consider that it can be said to be unduly harsh to expect the appellant to
relocate within Moldova. Were he to do so there would be no real risk
of his again being ill-treated in a way amounting to a breach of the Refugee
Convention or Article 3 or 8 of the Human Rights Convention. Internal flight therefore provides the answer
to the appellant's claim under the Refugee Convention and Articles 3 and 8 of
the Human Rights Convention."
The Relevant Law
[20] Apart from one issue which
in large measure resolved itself over the course of the hearing and to which I
shall return later, there was very little disagreement between the parties as
to the law applicable to a case of this kind.
It was agreed that the normal guidance for the legal challenge of an
administrative decision as set out in Associate Provincial Picture Houses Limited
v Wednesbury Corporation [1948] 1 KB 223 was to be applied but that, having regard to the decision in R v
Home Secretary ex parte Bugdaycay [1987] 1 AC 514 when an
administrative decision under challenge is one which may put the applicant's
life at risk "the basis of the decision must surely call for the most anxious
scrutiny" (per Lord Bridge of Harwich
at page 531G). The standard of
proof in deciding whether an applicant for asylum had a reasonable fear of
persecution for a Convention reason was agreed as being whether there was a
reasonable degree of likelihood of such a well-founded fear. Also, it was agreed that when fundamental
human rights are threatened the Court should not be inclined to "overlook some
perhaps minor flaw in the decision making process, or adopt a particularly
benevolent view of the minister's evidence, or exercise its discretion to
withhold relief" (R v Ministry of Defence ex p. Smith [1996] QB 517 per Simon Brown LJ at pages
537H-538A). The issue of internal flight
to another location is one of the issues raised in this case and in relation to
that issue there was no dispute that the onus of proving that it was unsafe to
expect the petitioner to relocate within Moldova
was on the petitioner. Counsel for the
Respondent stressed that the adjudicator acts as a specialist tribunal and a
court must exercise caution in interfering with his decision. Counsel for the petitioner did not disagree
with that proposition.
Submissions for the petitioner
[21] Counsel for the petitioner
advanced three arguments. Firstly, he
submitted that no reasonable adjudicator, having before him the background
information in this case relating to the difficulties facing homosexuals in Moldova,
would have made a finding that homosexuals could live throughout Moldova
in safety. Secondly, he submitted that
the adjudicator erred in law in that he equated the question whether it would
be unduly harsh to expect the petitioner to relocate in another part of Moldova
with the question whether there were substantial grounds for believing that
there was a real risk that the petitioner, if returned to any part of Moldova,
would be subjected to cruel, inhuman and degrading treatment or punishment
contrary to Article 3 of ECHR. Thirdly
he argued that no reasonable adjudicator, properly directing himself in the
relevant law, could have found that it would not have been unduly harsh to have
expected the petitioner to relocate within another part of Moldova.
[22] In developing his first submission, Counsel for the petitioner
argued that the evidence before the adjudicator did provide a clear basis for
the conclusion that homosexuals living anywhere in Moldova
were at risk from police brutality. He
relied, in particular, on the GenderDoc-M material. He pointed to the adjudicator's conclusion in
paragraph 26 of his determination that there was a danger that much of what
GenderDoc-M might say was partisan and submitted that notwithstanding that
conclusion the adjudicator ought to have tested that material against the other
background material before him. Had he
done so he would have seen that there was no contradiction in the material in
relation to the manner in which homosexuals were treated in Moldova. The objective evidence did not suggest that
the police brutality towards homosexuals was confined to any location and
Counsel submitted that the statement made by the adjudicator in paragraph 41 to
the effect that "it seems to me on this evidence that the appellant became the
victim of a group of misguided police officers in his local area" did not mean
that the problem was not widespread.
[23] In developing his second submission counsel for the petitioner
focussed in particular on paragraphs 42 and 43 of the adjudicator's
determination. The essence of his point
was that the adjudicator limited his consideration of whether or not it would
be unduly harsh to expect the appellant to relocate within Moldova
to whether there was a risk of persecution under the Geneva Convention or a
violation of Article 3. Counsel
submitted that in so doing he erred in law because something could be unduly
harsh without being contrary to Article 3 of ECHR. In this part of his submission Counsel for
the petitioner made detailed reference to the decision in E and Another v Secretary of
State for the Home Department [2004] 2 B 531. He argued that the test put forward in that
case by the Court of Appeal on the issue of internal flight was too narrow and
inconsistent with the broader test seen in other authorities. In his analysis of what was said in E v Secretary
of State for the Home Department counsel submitted that the Court of Appeal
effectively concluded that it would not be unduly harsh for a person to
relocate unless the conditions in the place of relocation amounted to
persecution or were incompatible with ECHR.
He accepted that on that basis the adjudicator did not err in what he
said at paragraph 42 of his determination but counsel for the petitioner's
position was that the views expressed in other cases envisaging a broader test
were to be preferred.
[24] The third submission advanced by counsel for the petitioner
also depended upon his analysis of the position in E v Secretary of State for
the Home Department. He submitted
that on the facts the adjudicator ought to have concluded that it would have
been unduly harsh to expect the petitioner to relocate in Moldova. To expect him to do so would be to have him
to return to a regime where discrimination against homosexuals was widespread
and where the police engaged in such discrimination and did so with apparent
impunity.
[25] In developing his submissions counsel for the petitioner, in
addition to the cases already referred to, also referred to the following cases
and sources: R v Secretary of State for the Home
Department ex parte Bugdaycay [1987] 1 AC 514, R v Ministry of Defence
ex parte Smith [1996] QB 517, R v Secretary of State for the Home Department
ex parte Sivakumaran [1988] 1 AC 958,
Hariri v Secretary of State for the
Home Department [2003] EWCA Civ 807,
Lahori v Secretary of State for the
Home Department (IAT) Appeal No. G0062 (1998), Dumitru v Secretary of State for the Home Department
(IAT) Appeal No. 00TH00945, 2000, Gashi & Nikshiqu v Secretary of State for the Home Department (1997) INLR 96, Jain v Secretary of State for the Home Department (2000) IMM AR 76, R v Secretary of State for the Home Department ex
parte Robinson 1998 QB 929, R v Secretary of State for the Home Department
ex parte Salim [2000] IMM AR 6, R v Chief Constable of South Yorkshire Police [2002] 1 WLR 3223, R v Broadcasting Standards Commission ex parte British Broadcasting
Corporation [2001] QB 885,
Karanakaran v Secretary of State for
the Home Department [2000] 3 All ER 449,
Asylum Law and Practice, Symes and Jorro paras. 2.9, 5.6-5.10 and pages
207-225, Immigration Law and Practice in the United
Kingdom (5th edition), Macdonald
and Webber para. 12.44, UNHCR Guidelines on International Protection, Joint
Position (4th March 1996) of the Council of the European Union on
the definition of the term "refugee" and note from the European Council on
Refugees in Exiles dated June 1995 and outcome of proceedings from the Asylum
Working Party of the Council of the European Union dated 24th April
2002.
[26] Counsel for the petitioner invited me to sustain his second
plea-in-law and to grant decree of reduction.
Submissions for the respondent
[27] Counsel for the respondent emphasised the need for caution in
interfering with the decision of an adjudicator because of the special competence
that he has in the area of immigration.
In particular, matters relating to the assessment of the background
evidence and the application of the unduly harsh test fell within that
particular special competence. He also
emphasised that the unreasonableness test represented a very high standard.
[28] On the issue of onus of proof there was no dispute that the
onus is on the petitioner to establish that the internal flight alternative was
not available to him. If there is no
evidence then the issue goes against him.
He submitted that it is not necessary for the respondent to lead any
positive evidence that it is safe elsewhere.
[29] In assessing the potential risks to the petitioner he submitted
that it was important to differentiate between different lifestyles and that
differences in lifestyle might give rise to different risks. For example, a homosexual who engaged in
"cruising" or frequented gay bars exposed himself to a greater risk of physical
abuse than might be said about the petitioner in this case.
[30] Counsel for the respondent went on to analyse the approach
taken by the adjudicator and submitted that there was no confusion in his
approach and no irrationality. He argued
that the adjudicator had not misunderstood the evidence and had not taken into
account any irrelevant considerations.
At the continued hearing, counsel for the respondent was able to refer
to the decision in Januzi v Secretary of State for the Home Department
[2006] 2 WLR 397, a decision of the House of Lords that was not available at
the time counsel for the petitioner made his submissions. Counsel for the respondent pointed out that
in Januzi v Secretary of State for the Home Department the decision of the
Court of Appeal in E v Secretary of State for the Home Department
was approved and that showed that the attack made by counsel for the petitioner
on that decision was misconceived. He
submitted that in relation to the internal flight alternative, the adjudicator
had correctly applied the law as set out in those cases. The fact that western economic and social
rights were not available in the home country did not mean that it would be
unduly harsh to require an asylum seeker to relocate in another part of that
country.
[31] Counsel for the respondent invited me to sustain the second
plea-in-law for the respondents, repel the petitioner's pleas-in-law, and
dismiss the petition.
Reply on behalf of the petitioner
[32] Counsel for the petitioner made a short reply essentially to
deal with the decision in Januzi v Secretary of State for the Home Department. He submitted that the observations made by
their Lordships in that case were not unhelpful to the position he was adopting
in particular in relation to the unduly harshness test. He repeated his submission that in the
circumstances no reasonable adjudicator could have come to the view that there
was a place of safety where the petitioner could relocate. He referred to Svazas v Secretary of State
for the Home Department [2002] 1 WLR 1891.
Response on behalf of the respondent
[33] In a short response counsel for the respondent reiterated his
point that it was necessary to look at the particular circumstances of the case
in order to assess the level of risk. In
assessing risk there was a difference between the active homosexual scene and a
participant in a less active scene.
Discussion
[34] In my view there are two questions to be addressed in this
application for judicial review.
Firstly, did the adjudicator err in concluding that the appellant could
avoid persecution if he relocated to another area of Moldova? Secondly, did he err in his approach to the
question of internal flight?
Safe relocation
[35] It is clear the adjudicator
was satisfied that in his home area the petitioner was at a real risk of being
persecuted because of his homosexuality.
As he sets out in paragraphs 34-38 of his determination (see paragraph
[17]) he accepted that the petitioner had been subjected to regular beatings by
the police and that there did not exist a sufficiency of protection for
him. In coming to that latter conclusion,
as disclosed in paragraph 38 of his determination, he relies on material that
relates to the country as a whole and not just Balti. I have set out at paragraph [13] the material
from the GenderDoc-M source that the adjudicator accepted when considering the
risk to the petitioner. Again that
material is not limited to the petitioner's home area and discloses the real
risk that homosexuals as a group face generally and more particularly at the
hands of the police. Not only did the
adjudicator have regard to that material but he also had before him the written
and oral evidence of the petitioner. It
was the totality of that material that prompted him to make the clear finding
in fact that I have set out at paragraph [15] namely that "... in Moldova homosexuals are beaten by the police and
people generally insult homosexuals".
That finding is not limited in any way to the petitioner's local area
and plainly applies to Moldova
generally. In light of that finding the adjudicator's
reasoning in paragraph 41 of his determination makes surprising reading. I have set that paragraph out in full at
paragraph [19]. He says that he did "not read the background material as
indicating that this is so widespread a problem that homosexuals cannot live
anywhere in Moldova in safety" and he goes on to conclude "on this evidence that the appellant became the victim of a group of misguided police
officers in his local area". There
is an apparent contradiction between that reasoning and the clear finding in
fact he makes to which I have already referred.
In particular his finding in fact does not limit the attitude of the
police to homosexuals to any particular area and, on the face of it, applies to
Moldova as a
whole.
[36] In giving the adjudicator's determination the anxious scrutiny
that I am enjoined to give it, I am of the view that the adjudicator, in an
unreasonable way, failed to follow through the logic of his own finding in
fact, based as it was on background material that he was prepared to accept and
the evidence of the petitioner and his sister as to general attitudes in
Moldova. Having made such a clear and
unqualified finding in fact, it seems to me that it was incumbent upon the
adjudicator if, notwithstanding that finding, he was going to conclude that the
petitioner could relocate safely, to have given clear and cogent reasons for
such a conclusion. In my judgement he
has failed to do so.
[37] Counsel for the respondent, as I have already indicated, sought
to differentiate the level of risk that might attach to active homosexuals as
against the level of risk that might have attached to the petitioner. That approach did not form part of the
adjudicator's reasoning but, in any event, as at the time of his detention and
maltreatment, the petitioner had decided no longer to keep his sexual
orientation secret. Indeed it was the
fact that he was seen holding hands with another man that triggered the police
response.
[38] Accordingly, so far as this particular issue is concerned, I
consider that the approach adopted by the adjudicator was one which a
reasonable adjudicator would not have adopted.
Internal flight
[39] Although the petitioner
succeeds in his application for judicial review standing my decision on the
first question, should I be wrong in relation to that issue, then it is also necessary
that I set out my view on the issue of internal flight.
[40] Whatever prior controversy may have existed on the issue of the
internal flight alternative, in Januzi v Secretary of State for the Home Department the House of Lords has
provided clear guidance as to how that issue is to be addressed. In so doing, the House of Lords approved the
decision in E v Secretary of State for the Home Department and it is to that case
that I shall first turn.
[41] The claimants in E
were a Tamil couple who, with their children, left Sri
Lanka to seek asylum as refugees in the United
Kingdom.
The Secretary of State refused their claims but a special adjudicator
allowed their appeal holding that the husband had a current well-founded fear
of persecution in the North of Sri Lanka, and that if they were removed to
Colombo, although neither claimant was reasonably likely to be persecuted, the
post traumatic stress disorder from which the wife was suffering would be
aggravated. The special adjudicator
concluded that in such circumstances it would be unduly harsh to expect the
family to relocate to Colombo. The adjudicator made no finding that the wife
had a well-founded fear of persecution in any part of Sri
Lanka.
The Immigration Appeal Tribunal allowed the Secretary of State's appeal
against that decision.
[42] In the Court of Appeal the essential focus was on the correct
approach to internal relocation. In
approaching that issue Lord Phillips of Worth Matravers MR says at page 540:
"The Issue
12. Article 1 of the Convention
relating to the Status of Refugees (1951) (CMND9171), as amended by the 1967
Protocol (CMND3906), (the "Refugee Convention") provides:
'A. For the purposes of the present Convention,
the term "refugee" shall apply to any person who ... (ii) ... 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 a 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 as a result of such
events, is unable or owing to such fear, is unwilling to return to it"
13. The issue is the manner in which this
definition falls to be applied where an asylum seeker has a well-founded fear
of persecution in the part of his country where he habitually resides, but
where there is another part of the country where he would not have such
fear. This is an issue which arises
quite frequently in the case of Tamils who live in the north of Sri
Lanka.
In that part of the country government troops are in conflict with the
LTTE and treat brutally Tamils suspected of assisting that rebel government,
which in some circumstances gives rise, in the case of such suspects, to a well
founded fear of persecution. Tamils who
live in, or who move to, Colombo
are not, in general, subject to such danger or such fear."
[43] Having defined the issue that required to be addressed Lord
Phillips goes on to consider the historical background to the issue and says at
page 542:
"19. There is no reason to believe that those
who agreed the refugee convention in 1951 gave any thought to the possibility
that a well-founded fear of persecution might exist in relation to one part of
a state but not to another part. In Canaj v Secretary of State for the Home Department [2001] INLR 342, 349,
Simon Brown LJ suggested that the concept of 'internal flight alternative',
which we prefer to describe as '"internal relocation', appears to have
originated in para. 91 of the UNHCR Handbook on Procedures and Criteria for
Determining Refugee Status, which was first published in 1979. This read:
'The fear of
being persecuted need not always extend to the whole territory of the refugees
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 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'."
[44] Lord Phillips sets out how the issue of internal relocation is
to be approached at page 543:
"23. Relocation in a safe haven will not
provide an alternative to seeking refugee status outside a country of nationality
if, albeit 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 viscisitides 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 a safe haven and those prevailing in the
country in which asylum is sought."
[45] Having set out the general principles in that way Lord Phillips
embarked upon a detailed analysis of case law in this country, Canada
and New Zealand. He goes on at page 555 to say:
"64. ...
So far as refugee status is concerned, the 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 relocation.
If that comparison suggests that it would be unreasonable, or unduly
harsh, to expect him to relocate in order to escape the risk of persecution his
refugee status is established. The
"unduly harsh" test has, however, been extended in practice to have regard to
factors which are not relevant to refugee status, but which are very relevant
to whether exceptional leave to remain should be granted having regard to human
rights or other humanitarian considerations."
[46] Having defined the test in that way Lord Phillips goes on to say:
"67. It seems to us important that the
consideration of immigration applications and appeals should distinguish
clearly between (i) the right to refugee status under the Refugee Convention,
(ii) the right to remain by reason of rights under the Human Rights Convention
and (iii) considerations which may be relevant to the grant and leave to remain
for humanitarian reasons.
So far as the
first is concerned, 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. The comparison between the asylum seeker's
situation in this country and what it will be in the place of relocation is not
relevant for this purpose, though it may be very relevant when considering the
impact of Human Rights Convention or the requirements of humanity."
[47] In E, the applicants did
not invoke the Human Rights Act 1998, the appeals being limited to the
contention that the husband should be granted refugee status because it would
be unduly harsh to expect him to relocate in Colombo
having regard to the effect that this would have on his wife's psychiatric
condition. The wife's psychiatric condition
was not attributable to persecution or a well-founded fear of persecution on
her part, nor did it relate to her husband's well-founded fear of
persecution. Accordingly, when
considering the question as to whether it would be reasonable to expect the
husband to live in Colombo, his
wife's condition was no more than a neutral factor. What the husband's case came to was that if
he and his wife were permitted to remain in the United
Kingdom then that would be likely to be
beneficial to her psychiatric condition, whereas being returned to Sri
Lanka was likely to be detrimental to
it. That being so, it did not constitute
a reason to find that he had refugee status under the Refugee Convention.
[48] On the basis of what was said in E v Secretary of State for
the Home Department the test as to whether an asylum seeker could
reasonably have been expected to relocate in his home country involves a
comparison between the conditions prevailing in the place of his habitual
residence and the conditions prevailing in the place of relocation having
regard to the impact that the relocation conditions on the asylum seeker. It is also clear from the passage quoted in
paragraph [46] from what was said by Lord Phillips that in dealing with an
immigration application it is important to distinguish between the right to
refugee status under the Refugee Convention from the right to remain by reasons
of rights under the Human Rights Convention.
The internal flight analysis is only of relevance to the issue of refugee
status under the Refugee Convention.
[49] Although permission to appeal to the House of Lords was granted
in E that appeal was not pursued
because the issues that it would have raised were raised in Januzi v Secretary of State for the Home Department. That appeal consisted of two appeals. In the first appeal the claimant was an
ethnic Albanian from a Serb dominated area of Kosovo. Having claimed asylum as a refugee under the
Refugee Convention, the Secretary of State, having accepted that the claimant's
home was in an area where the Serb population was in the majority, concluded
that it would not be unduly harsh for him to relocate in one of a number of
other areas of Kosovo where the Albanian population predominated. On appeal the adjudicator allowed his appeal
on the basis that the claimant's psychiatric condition resulting from his
experiences in Kosovo would be exacerbated by his return and the general lack
of health care facilities meant that it would be unreasonable to expect him to
do so. The Immigration Appeal Tribunal
allowed the Secretary of State's appeal against that decision, and on appeal to
the Court of Appeal, the Court of Appeal upheld the Secretary of State's
refusal of his claim. In the other
appeal, the three claimants were Black Africans who had fled from their homes
in the Darfur region of Sudan
to Khartoum before arriving in the United
Kingdom.
Their asylum claims that they had a well-founded fear of racial
persecution which had been sanctioned or connived in by the State authorities
were refused by the Secretary of State.
It was considered that Khartoum
would be a safe area and that it was reasonable to expect them to relocate
there. The asylum and Immigration
Tribunal refused their applications for reconsideration. The Court of Appeal dismissed their
appeals. In the House of Lords the
Secretary of State conceded that the cases of two of the claimants required to
be remitted for reconsideration.
[50] The issue that arose in both of the appeals was whether, in
judging reasonableness and undue harshness in the context of relocation,
account should be taken of any disparity between the civil, political and
socio-economic human rights which the claimants would enjoy under the leading
international Human Rights Conventions and Covenants, and those which they
would enjoy at the places of relocation.
Lord Bingham of Cornhill having referred to the passages I have already
quoted in paragraph [42] - [44] goes on to set out reasons why the approach of
the Court of Appeal in E had to be
preferred to the different approach that had been taken in New
Zealand.
He says at pages 411-412:
"20. I would accordingly reject the appellants'
challenge to the authority of E and dismiss all four appeals so far as they
rest on that ground. It is, however,
important, given the immense significance of the decisions they have to make,
that decision-makers should have some guidance on the approach to
reasonableness and undue harshness in this context. Valuable guidance is found in the UNHCR
Guidelines on International Protection of 23rd July 2003.
In para. 7II(a) the reasonableness analysis is approached by asking "Can
the claimant, in the context of the country concerned, relead a relatively
normal life without facing undue hardship?" and the comment is made: "If not,
it would not be reasonable to expect the person to move there". In development of this analysis the
guidelines address respect for human rights in para. 28:
'Respect for Human Rights
Where respect for human rights
standards, including in particular non-derogable rights, is clearly
problematic, the proposed area cannot be considered a reasonable
alternative. This does not mean that the
deprivation of any civil, political or socio-economical human right in the proposed
area will disqualify it from being an internal flight or relocation alternative. Rather, it requires, from a practical
perspective, an assessment of whether the rights that will not be respected or
protected are fundamental to the individual, such that the deprivation of those
rights would be sufficiently harmful to render the area an unreasonable
alternative.'
They then
address economic survival in paras. 29-30:
'Economic survival
29. The socio-economic conditions in the
proposed area will be relevant in this part of the analysis. If the situation is such that the claimant
will be unable to earn a living or to access accommodation, or where medical
care cannot be provided or is clearly inadequate, the area may not be a
reasonable alternative. ...
30. If the person would be denied access to
land, resources and protection in the proposed area because he or she does not
belong to the dominant plan tribe ethnic religious and/or cultural group,
relocation there would not be reasonable'."
[51] Agreeing with Lord Bingham, Lord Hope of Craighead also held
that the question whether it would be unduly harsh for a claimant to be
expected to live in a place of relocation within the country of his nationality
was not to be judged by considering whether the quality of life in the place of
relocation met the basic norms of civil, political and socio-economic human
rights. At page 420 he says:
"46. There is, as Lord Bingham points out, no
basis for such a test in the wording of Article 1A(ii) of the Refugee
Convention. The principal objection to
it is that it invites a comparison between the conditions which prevail in the
place of relocation and those which prevail in the country in which asylum is
sought. The conditions that prevail in
the country in which asylum is sought have no part to play, as a matter of
legal obligation binding on all states parties to the Convention, in deciding
whether the claimant is entitled to seek asylum in that country. The extent of the agreement to which the
states committed themselves is to be found in the language which they chose to
give formal expression to their agreement.
The language itself is the starting point: see Adan v Secretary of State for
the Home Department [1999] 1 AC 293, 305D-E, per Lord Lloyd of Berwick. A
successful claimant will, of course, be entitled to all the benefits that are
set out in Articles 2-34 of the Convention without discrimination as to race,
religion or country of origin: see Article 3.
But to become entitled to those benefits a claimant must first show that
he is entitled to the status of a 'refugee' as defined in Article 1A(ii). At this stage, if the possibility of internal
relocation is raised, the relevant comparisons are between those in the place
of relocation and those that prevail elsewhere in the country of his
nationality. As the Court of Appeal said
in E v Secretary of State for the Home Department [2004] QB 531, para. 67,
the comparison between the asylum - seekers situation in this country and what
it will be in the place of relocation is not relevant for this purpose, though
it may be very relevant when considering the impact of the European Convention
on Human Rights or the requirements of humanity."
Lord Nicholls of Birkenhead
agreed with Lord Bingham and Lords Carswell and Mance agreed with Lords Bingham
and Hope.
[52] On the facts the appeal against the Court of Appeal's decision
in relation to the claimant who asserted it would be unreasonable for him to
relocate in Kosovo was dismissed and in relation to the outstanding appeal in
the other case the Court decided to remit that case along with the other cases
where a remit had been conceded for reconsideration by the asylum and
Immigration Tribunal.
[53] The decisions in E
and Januzi have clarified the law as to how the test of reasonableness is
to be addressed when internal relocation is being considered as an option when
deciding whether an applicant is to be granted refugee status. The conditions prevailing in the place of
habitual residence must be compared with the conditions prevailing in the place
of relocation. Furthermore, the
conditions in the proposed place of relocation must be assessed to establish
what impact they will have on the particular asylum seeker, and if under those
conditions he cannot live a relatively normal life according to the standards
of his own country it would be unreasonable and unduly harsh to expect him to
go to live in the place of relocation.
[54] In paragraphs [46] and [51] I have set out what was said by
Lord Phillips in E and Lord Hope in Januzi about the interplay between the
right to refugee status under the Refugee Convention and the right to remain by
reason of rights under the Human Rights Convention. Although there may be an overlap, in
particular between the circumstances that might engage Article 3 of the Human
Rights Convention and the Refugee Convention, nevertheless in approaching an
asylum seeker's claim under the Human Rights Convention and the Refugee
Convention it may be important to distinguish the two processes. That that may be so is clear particularly from
what is said by Lord Hope in that part of his speech I have set out at
paragraph [51]. He plainly envisages
that so far as the Refugee Convention is concerned, it is in assessing whether
the claimant is entitled to the status of a refugee that the possibility of
internal relocation is relevant. It is
at that part of the analysis that the appropriate comparison involves comparing
the circumstances in the claimant's place of habitual residence with the
circumstances in the proposed place of relocation. But the comparison between the asylum
seeker's situation in the United Kingdom
and the proposed place of relocation, in the language of Lord Hope, "may be very relevant when considering the
impact of the European Convention on Human Rights or the requirements of
humanity".
[55] The adjudicator addresses the issue of internal relocation in
paragraphs 42 and 43 of his determination (see paragraph [19] of this
Opinion). In paragraph 40 of his
determination he confirms that he was not specifically addressed in evidence or
in oral submissions on this whole issue of internal flight. He does say in that paragraph that he
considered that internal flight was "impliedly addressed" by the respondent in
his refusal letter at paragraph 11. In
that section of the refusal letter the respondent, as part of his reasoning,
concludes that the problems encountered by the petitioner were of "a localised
nature". The adjudicator suggests that
this was addressed by the petitioner in his skeleton argument - I have not seen
that document.
[56] I consider it to be highly unfortunate that this whole issue
was not properly ventilated before the adjudicator. The appeal to the adjudicator seemed to
proceed on the basis that if the petitioner was found to be credible, contrary
to the view taken by the respondent, and satisfied the adjudicator that he was
the victim of persecution with insufficient protection that he would
succeed. As I think is apparent from the
decisions in E and Januzi the issue
of internal relocation is not an easy one and I would have thought one that
demanded far greater attention. Although
the onus is on the petitioner in such circumstances to prove that there is no
safe haven in his home country, that does not mean that he has to focus on
individual parts of his own country and deal with them one by one to show that
it would be unsafe for him to go there.
In this particular case, as I have concluded when dealing with the first
issue that I have focussed upon, the petitioner led evidence which contributed
to the finding of fact made by the adjudicator that generally in Moldova
homosexuals are beaten by the police and people generally insult
homosexuals. As a practical matter, if
the Secretary of State considers that there is a city, town, or specific place
in the country which would satisfy the tests required for the existence of a
safe haven, then he should give notice of that to the applicant. The applicant would then have the task of
proving at the requisite standard that the proposed place of relocation was in
fact unsafe. In E the Secretary of State focussed on Colombo
as a safe haven, and in Januzi
Pristina in Kosovo and Khartoum in Sudan
were pointed to by the Secretary of State as possible safe havens. The onus was then on the applicants to prove
that the proposed safe havens did not satisfy the internal flight
requirements. The manner in which this
matter was addressed before the adjudicator (with whom I have some sympathy
when he came to address it) was wholly unsatisfactory.
[57] Be that as it may, I am quite satisfied that the adjudicator
erred in his approach to the issue of internal relocation in a number of
respects. In paragraph 42 he appears to
conflate the unduly harsh test with the risk of persecution per se.
Having decided that the petitioner would be subjected to "discrimination and criticism", at times
"trenchant", because of his
homosexuality elsewhere in Moldova he goes on to say that "The discrimination and criticism which the appellant risks facing
would not however in my view amount to persecution or a breach of Article 3". Plainly, the risk of persecution would
satisfy the unduly harsh test and indeed render it redundant. It is clear from what was said in E and Januzi that the unduly harsh test is not circumscribed by the risk
of persecution or for that matter Article 3 of the Human Rights
Convention. For the adjudicator to judge
the unduly harsh test under reference to the risk of persecution per se was an error of law.
[58] Furthermore, although the adjudicator concludes that the discrimination
and criticism which the petitioner risked facing if he were to relocate to
another part of Moldova would not amount to a breach of Article 3 of ECHR,
there is no analysis of the petitioner's application under Article 8 of
ECHR. Also, there is evident confusion
in his final remarks when he says "Internal
flight therefore provides the answer to the appellant's claims under the
Refugee Convention and Articles 3 and 8 of the Human Rights Convention". As I have already discussed under reference to
the decisions in E and Januzi, the internal flight alternative
is a doctrine that has developed under reference to the Refugee Convention in
order to determine whether any asylum seeker is entitled to the surrogate
protection of the international community.
When ECHR is engaged, the analysis takes on a different form requiring,
as pointed out by Lord Hope in Januzi,
a comparison between the asylum seeker's situation in this country and his
situation in the home country. In this
case the correct comparison might have had an important impact, particularly in
relation to Article 8 of ECHR.
[59] In the circumstances I am satisfied that the IAT erred in law
in rejecting as not arguable the petitioner's challenge to the adjudicator's
determination. Accordingly I shall
uphold the petitioner's second plea-in-law to the extent of granting decree of
reduction of the IAT's determination dated 12 March 2003.
