|Judgments - Secretary of State for the Home Department (Appellant) v. AH (Sudan) and others (FC) (Respondents)
HOUSE OF LORDS
 UKHL 49
on appeal from:  EWCA Civ 297
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Secretary of State for the Home Department (Appellant)
AH (Sudan) and others (FC) (Respondents)
Lord Bingham of Cornhill
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Rabinder Singh QC
(Instructed by Treasury Solicitors)
AH: Manjit Gill QC
(Instructed by Blakemores)
NM: Manjit Gill QC
(Instructed by White Ryland)
IG: Manjit Gill QC
(Instructed by Aman Solicitors)
UNHCR: Tim Eicke
(Instructed by Baker and McKenzie)
4 OCTOBER 2007
WEDNESDAY 14 NOVEMBER 2007
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Secretary of State for the Home Department (Appellant) v AH (Sudan) and others (FC) (Respondents)
 UKHL 49
LORD BINGHAM OF CORNHILL
Januzi v Secretary of State for the Home Department
"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,  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."
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 enquiry 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 applicants 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.
The decision of the AIT
"146. From the opinions of their Lordships in Januzi we extract several propositions of particular importance in deciding the issues before us in this case.
147. First, it is essential when considering internal relocation to have regard to both considerations of: (1) safety, in the sense of an absence of persecution; and (2) reasonableness, in the sense of whether conditions are unduly harsh (Januzi, paragraphs 7, 8, 47 and 48).
148. Secondly, whilst it may be relevant to deciding a particular case to have regard to whether a person sought to avail himself of internal relocation prior to departure, the test of whether someone faces real risk under the Refugee Convention and under article 3 essentially concerns whether refoulement or return of a person would give rise to current risk: see for example Lord Binghams approval at paragraph 20 of analyses made in the context of return and Lord Hopes reference in paragraph 48 to the dangers of return'.
149. Thirdly, there is no presumption that internal relocation is impossible simply because the persecutors in a persons home area are agents of the state. Nevertheless, evidence of state involvement, whether that involvement is direct or indirect, is relevant (paragraphs 21, 48 and 49).
150. Fourthly, the issue of reasonableness or whether conditions are unduly harsh is a rigorous one (Lord Carswell, paragraph 67); and it is wrong to decide this, as urged by the Hathaway/New Zealand approach, by reference to whether those conditions meet the requirements of international human rights law in full. The issue is whether conditions in that country generally as regards the most basic human rights that are universally recognised the right to life and the right not to be subjected to cruel or inhuman treatment are so bad that, it would be unduly harsh to expect a person to seek a place of relocation (Lord Hope, paragraph 54). At most all that can be expected is that basic human rights standards, in particular non-derogable rights, are not breached.
151. Fifthly, it is of particular importance in the context of whether internal relocation is reasonable in the sense of unduly harsh that matters are looked at cumulatively, taking account of all relevant circumstances: the importance of this approach is manifest from paragraphs 20-21 and 50 of their Lordships opinions.
152. Sixthly, integral to the assessment which must be made is a comparison between the conditions in the country as a whole and those which prevail in the place of intended alternative relocation (paragraphs 19 and 54)."
"(5) The evidence does not show that any returnee of either of the origins described in sub-paragraph (4) will, regardless of their personal circumstances, have no option but to live in an IDP camp or a squatter area, if returned from the United Kingdom to Khartoum. It has not been suggested that the Sudanese authorities have a policy of requiring a returnee of either of the origins described in sub-paragraph (4) to go and live in IDP camps or squatter areas. The burden of proof is on the appellant to show a reasonable likelihood of having to live in such a place. This will involve showing that it is not reasonably likely that the returnee will have any money, or access to money, or access to friends or relatives who may be able to assist in helping the returnee to establish him or herself (paragraphs 221-228).
(6) But even if such a person shows that it is reasonably likely he or she will end up in such a camp or area, conditions there, though poor, are not significantly worse than the subsistence level existence in which people in Sudan generally live. Applying the principle set out in Januzi, the conditions in such camps or areas are not generally such as to amount to unduly harsh conditions (paragraphs 229-245)."
The Tribunal then considered the respondents individual appeals and upheld the Secretary of States refusal of asylum.
The Court of Appeal decision
"33. An analysis of the judgment of Lord Phillips in E and of the speech of Lord Bingham in Januzi therefore yields the following propositions as to the approach to whether internal relocation is available in a particular case; bearing in mind always that the standard for rejecting the availability of internal flight is rigorous (per Brooke LJ in Karanakaran v Secretary of State for the Home Department  3 All ER 449, 456, and Lord Carswell in Januzi  2 AC 426, para 67):
i) The starting-point must be conditions prevailing in the place of habitual residence
ii) Those conditions must be compared with the conditions prevailing in the safe haven
iii) The latter conditions must be assessed according to the impact that they will have on a person with the characteristics of the asylum seeker
iv) If under those conditions the asylum seeker cannot live a relatively normal life according to the standards of his country it will be unduly harsh to expect him to go to the safe haven
v) Traumatic changes of life-style, for instance from a city to a desert, or into slum conditions, should not be forced on the asylum seeker."
Building on this analysis, the court found two errors of law in the AITs judgment. First (para 35), it had wrongly assimilated the Convention test of unreasonableness with the requirement that a person should not be treated in a way that would infringe article 3 of the European Convention or its equivalent, an approach not warranted by the opinions of the House in Januzi. Secondly (para 36), the AIT had wrongly made a comparison between conditions in the country as a whole and those prevailing in the place of intended alternative relocation and not, as envisaged by Januzi and other authority, between conditions in the place of habitual residence and those in the safe haven. It concluded that the AITs conclusion in paragraph 309(6) was not open to it. Since the Tribunal had not properly applied the law (para 40), it fell to the court to do so, with the result already summarised.
"an important reference point for us in having to decide the issues in this case, since it is clear from Januzi that what we have to consider is whether the conditions in a place of relocation fall below the most basic human rights, in particular non-derogable human rights (see Lord Hope, Januzi, paragraph 54)."
The assessment of reasonableness and undue hardship
LORD HOPE OF CRAIGHEAD
BARONESS HALE OF RICHMOND
"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."
As the UNHCR put it in their very helpful intervention in this case,
" . . . the correct approach when considering the reasonableness of IRA [internal relocation alternative] is to assess all the circumstances of the individuals case holistically and with specific reference to the individuals personal circumstances (including past persecution or fear thereof, psychological and health condition, family and social situation, and survival capacities). This assessment is to be made in the context of the conditions in the place of relocation (including basic human rights, security conditions, socio-economic conditions, accommodation, access to health care facilities), in order to determine the impact on that individual of settling in the proposed place of relocation and whether the individual could live a relatively normal life without undue hardship."
I do not understand there to be any difference between this approach and that commended by Lord Bingham in paragraph 5 of his opinion. Very little, apart from the conditions in the country to which the claimant has fled, is ruled out.
"The lack of any UN-related finding that conditions in the camps and/or squatter areas are generally at the level of the international equivalent to what we in Europe refer to as the article 3 ECHR standard, is an important reference point for us in having to decide the issues in this case, since it is clear from Januzi that what we have to consider is whether the conditions in the place of relocation fall below the most basic human rights, in particular non-derogable human rights (see Lord Hope, Januzi, para 54)."
And again, when examining medical facilities, in the context of their specific bearing on the issue of internal relocation", the Tribunal quote for a third time from para 54 of Januzi (in para 257), giving once more the impression that in their view, the tests for unduly harsh and Article 3 are the same. They go on to conclude in para 259:
"Nor does the evidence show . . . that the health facilities available in the squatter areas and camps for displaced persons in and around Khartoum are so bad as to deprive those who live there, not just of the basic norms of civil, political and socio-economic rights that are regarded as acceptable internationally but also of the most basic of human rights that are universally recognised - the right to life, and the right not to be subjected to cruel or inhuman treatment'."
LORD BROWN OF EATON-UNDER-HEYWOOD
"No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention."
Nor are those involved in civil war. Nor those persecuted for non-Convention reasons. Nor those affected by ill-health, even if their return home would dramatically shorten their life expectancysee N v Secretary of State for the Home Department  2 AC 296, holding AIDS sufferers to be outside the protection even of article 3 of the ECHR. Nor is refugee protection extended to those who have no present fear of persecutioncircumstances in their home country having improved (Adan v Secretary of State for the Home Department  1 AC 293), not even if there exist compelling reasons arising out of their previous persecution for them not to be returned home (R (Hoxha) v Special Adjudicator  1 WLR 1063).
"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. (Lord Bingham at para 21)."
"It is not easy to see how the rule could be more simply or clearly expressed. And (at para 13), the test exclud[es] from consideration very little other than the standard of rights protection which an applicant would enjoy in the country where refuge is sought."
"[T]he nature of the test of whether an asylum seeker could reasonably have been expected to have moved to a safe haven is clear. It involves a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker. What the test will not involve is a comparison between the conditions prevailing in the safe haven and those prevailing in the country in which asylum is sought."
And this (at para 64):
"So far as refugee status is concerned, a comparison must be made between the asylum seekers conditions and circumstances in the place where he has reason to fear persecution and those that he would be faced with in the suggested place of internal location. If that comparison suggests that it would be unreasonable, or unduly harsh, to expect him to relocate in order to escape the risk of persecution, his refugee status is established."
Nor were those passages specifically criticised by the House in Januzi. The real point decided in E, however, was not that but rather the rejection of the asylum seekers contended-for test by which he sought to take advantage of a contrast with the conditions prevailing in the country in which asylum is sought.
"The question . . . 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, . . . it will not be unreasonable to expect him to move there."
And this surely is the logical approach. As Lord Bingham put it in Januzi (at para 19): It would be strange if the accident of persecution were to entitle him [an asylum seeker who, having escaped from a poor to a rich country, could without fear of persecution return to live elsewhere in his country of origin] to escape, not only from that persecution, but from the deprivation to which his home country is subject.