House of Lords portcullis
House of Lords
Session 2007 - 08
Publications on the Internet
Judgments
PDF Print Versionpdf icon

Judgments - Secretary of State for the Home Department (Appellant) v. AH (Sudan) and others (FC) (Respondents)

HOUSE OF LORDS

SESSION 2007-08

[2007] UKHL 49

on appeal from: [2007] EWCA civ 297

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)

Appellate Committee

Lord Bingham of Cornhill

Lord Hoffmann

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Counsel

Appellants:

Rabinder Singh QC

Lisa Giovannetti

Robert Kellar

(Instructed by Treasury Solicitors)

Respondents:

AH: Manjit Gill QC

Abid Mahmood

(Instructed by Blakemores)

NM: Manjit Gill QC

Chris Jacobs

(Instructed by White Ryland)

IG: Manjit Gill QC

Basharat Ali

(Instructed by Aman Solicitors)

Intervener

UNHCR: Tim Eicke

(Instructed by Baker and McKenzie)

Hearing date:

4 OCTOBER 2007

ON

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)

[2007] UKHL 49

LORD BINGHAM OF CORNHILL

My Lords,

1.  The three respondents, all of them men in their 30s, are Sudanese nationals. They are members of black African tribes, and formerly lived in Darfur. AH and IG worked as subsistence farmers. NM may have been employed in a business with his father. All three suffered severe persecution in Darfur at the hands of militias acting with government support or connivance. They fled from Darfur, in NM’s case after a six-month sojourn in Khartoum, arrived in this country and claimed asylum as refugees on dates in October - December 2004. In each case asylum was refused by the Secretary of State, whose refusal was upheld on appeal to an adjudicator or immigration judge. The respondents sought to challenge these refusals under section 103A of the Nationality, Immigration and Asylum Act 2002, and their cases were referred to the Court of Appeal under section 103C of that Act. The Court of Appeal dismissed the appeals on 25 October 2005 ([2005] EWCA Civ 1219) and the respondents appealed to the House. Here the appeals were heard together with that of an Albanian Kosovar, whose case raised the same issues. He was the lead appellant and gave his name to the resulting judgment: Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426. Januzi’s appeal was dismissed. With the agreement of the Secretary of State in the cases of AH and IG, the cases of all three of the respondents to the present appeal were referred to the Asylum and Immigration Tribunal (“the AIT”) for further reconsideration. The AIT re-considered the cases in June 2006 and on 3 August 2006 promulgated a very lengthy judgment dismissing the appeals and thus upholding the Secretary of State’s refusal of asylum as refugees: [2006] UKAIT 00062. The respondents again appealed to the Court of Appeal, and on this occasion succeeded, in the decision now under appeal: [2007] EWCA Civ 297. The appeals were allowed, the decision of the AIT set aside and the refusals of asylum quashed.

2.  It has been accepted throughout that the respondents have a well-founded fear of persecution in Darfur. The issues below were whether, if returned to Khartoum, the respondents would be at risk of persecution there and, if not, whether it would for other reasons be unreasonable or unduly harsh for the respondents to be returned to and relocated in Khartoum. The AIT concluded that the respondents would not be at risk of persecution in Khartoum if returned there. The Court of Appeal did not disturb this finding, and it has not been challenged in the House. The AIT also found that it would not be unreasonable or unduly harsh for the respondents to be returned to and relocated in Khartoum. It is this finding which the Court of Appeal rejected. It held that the AIT had misdirected itself by applying the wrong legal test to internal relocation, that it was therefore open to the Court of Appeal, applying the right test, to form its own judgment and, doing so, that it would be unreasonable or unduly harsh for the respondents to be returned to and relocated in Khartoum. The Secretary of State now contends that the AIT did not apply the wrong legal test and that the Court of Appeal was not entitled to disturb its judgment on the facts. I would acknowledge the help given by the United Nations High Commissioner for Refugees in resolving this appeal.

Januzi v Secretary of State for the Home Department

3.  The decision of the House in Januzi [2006] 2 AC 426 was also directed to the problem of internal relocation of claimants for asylum who had a well-founded fear of persecution in one part of their home state but who, it was said, could reasonably and without undue harshness be returned to and relocated in another part of that state. The common issue in the appeals (see para 1) was whether, in judging reasonableness and undue harshness in this context, account should be taken of any disparity between the civil, political and socio-economic rights which a claimant would enjoy under the leading international human rights conventions and covenants and those which he would enjoy at the place of relocation. The clear conclusion of the House was that, excepting breaches of fundamental rights such as are protected by articles 2 and 3 of the European Convention on Human Rights, it should not: paras 20, 23, 45-46, 61, 67, 70.

4.  In reaching that conclusion the House took as its starting-point the definition of “refugee” in article 1A(2) of the 1951 United Nations Convention relating to the Status of Refugees, as amended by the 1967 Protocol, the terms of which it recited. It referred to a body of materials including the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979), para 91; rule 343 of the Statement of Changes in Immigration Rules (1994) (HC 395); Council Directive 2004/83/EC of 29 April 2004 (OJ 2004 L 304.12); and UNHCR Guidelines on International Protection of 23 July 2003, paras 7 II(a), 28 and 29-30. It also referred to a body of judicial authority which included Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706, 711; Thirunavukkarasu v Canada (Minister of Employment and Immigration) (1993) 109 DLR (4th) 682; R v Secretary of State for the Home Department, Ex p Robinson [1998] QB 929, 939-940; Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, 470; Ranganathan v Canada (Minister of Citizenship and Immigration) [2001] 2 FC 164; and E v Secretary of State for the Home Department [2003] EWCA Civ 1032, [2004] QB 531. Reference was further made to G S Goodwin-Gill, The Refugee in International Law, 2nd ed (1996), p 74 and H Storey, “The Internal Flight Alternative Test: The Jurisprudence Re-examined", (1998) 10 International Journal of Refugee Law, 499, 529. In the present appeal the parties, naturally enough, rely on very much the same materials. I would refer to what was said by my noble and learned friends and myself in Januzi, but need not repeat it or refine it since it is not understood to be suggested that our understanding and exposition of these materials was defective.

5.  In paragraph 21 of my opinion in Januzi I summarised the correct approach to the problem of internal relocation in terms with which all my noble and learned friends agreed:

“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] 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 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.

The decision of the AIT

6.  The judgment of the AIT does not lend itself to succinct summary. The facts relating to the three individual respondents (then appellants), also summarised by my noble and learned friend Lord Hope of Craighead in Januzi, paras 35-43, were set out. The evidence and other materials before the Tribunal were summarised in some detail (paras 14-137) and later evaluated (paras 161-170). The opinions of the House in Januzi were cited (paras 144-145) and the Tribunal continued:

“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 Bingham’s approval at paragraph 20 of analyses made ‘in the context of return’ and Lord Hope’s 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 person’s 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).”

7.  The Tribunal summarised its conclusions on return to Khartoum in paragraph 309, of which sub-paragraphs (5) and (6) are germane to this appeal:

“(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 State’s refusal of asylum.

The Court of Appeal decision

8.  As recounted above, the Court of Appeal (Buxton, Moore-Bick and Moses LJJ) allowed the respondents’ appeals. The judgment of the court was given by Buxton LJ. Having referred to the relevant authorities and materials, the court said:

“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 [2000] 3 All ER 449, 456, and Lord Carswell in Januzi [2006] 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 AIT’s 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 AIT’s 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.

The appeal

Article 3

9.  If the AIT considered that conditions in the place of intended relocation could not be unreasonable or unduly harsh unless they were liable to infringe an applicant’s rights under article 3 or its equivalent, it was plainly wrong. Nothing in Januzi or in the materials referred to in Januzi suggested such a test. No argument to that effect was advanced in Januzi, because there was no issue on the point. To the extent that reference was made to article 3 in Januzi it was to make clear, as might be thought obvious, that a claimant for asylum could not reasonably or without undue hardship be expected to return to a place where his rights under article 3 or its equivalent might be infringed.

10.  The Court of Appeal based its criticism primarily on paragraph 150 of the AIT judgment, quoted in paragraph 6 above. It also drew attention to paragraph 234 of the judgment, and reference may also be made to paragraph 235 where the AIT described the article 3 standard as

“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).

11.  The Court of Appeal’s criticism does not lack substance. Read strictly and grammatically, paragraph 150 does appear to assimilate the reasonableness issue with the article 3 issue, an impression also given by paragraph 235 just quoted. But paragraph 151 does not appear to support this narrow and wrong approach, which does not feature in the Tribunal’s conclusions, and at repeated points in the judgment (as in paras 228, 244, 264 and 265) the Tribunal directed their attention to whether, if returned to Khartoum, the respondents would be subjected to persecutory harm, ill treatment contrary to article 3 or to undue hardship in the context of a claim for international protection under the Refugee Convention. This reflects an entirely correct approach. It may very well be that the multiplicity of issues with which it had to deal led the Tribunal into making less plain than it should the issue it was addressing at some points in the judgment. I do not, however, think that the Court of Appeal was entitled to attribute to this experienced and well-qualified Tribunal what would, if made, have been an egregious and inexplicable error, and read as a whole the judgment does not suggest that the Tribunal made such an error.

The assessment of reasonableness and undue hardship

12.  In paragraph 152 of its judgment (quoted in para 6 above) the AIT described as integral to its assessment a comparison between conditions in an applicant’s home country as a whole and those prevailing in the place of intended alternative relocation. The Court of Appeal in paragraph 33 of its judgment (quoted in para 8 above) ruled that the starting point must be conditions in the place of habitual residence. In each case the conclusion was said to derive from the opinions of the House in Januzi.

13.  Those opinions support both these bases of comparison: see for instance paragraphs 13, 15, 19, 20, 46, 47. But there was no contest between the two bases in Januzi and nothing was said to suggest that one basis is to be preferred, or is to be the starting point. Both are relevant, and the weight to be given to each is a matter to be judged by the decision-maker in the context of a claim for asylum by a particular applicant in a particular case. As already indicated (para 5 above) the test propounded by the House in Januzi was one of great generality, excluding from consideration very little other than the standard of rights protection which an applicant would enjoy in the country where refuge is sought.

14.  Had the AIT excluded from consideration the conditions in which the respondents had lived in Darfur, it would have been wrong to do so. But this is not in my opinion a justified criticism. It acknowledged the home area in Darfur to be the natural habitat of those living there (para 158) and recognised that many non-Arab Darfuris were ill-equipped for city dwelling slum life, having come in the main from settled rural backgrounds as farmers (para 239). It is not, I think, suggested that there was evidence on this point which the AIT ignored. I do not consider that the Court of Appeal’s criticism of the Tribunal was justified; nor was the Court of Appeal’s own approach entirely accurate.

The facts

15.  Mr Manjit Gill QC, for the respondents, understandably laid stress on the immense human tragedy which has unfolded in Darfur and on the traumatic and life-changing implications for his clients. He criticised the Tribunal’s factual conclusions and urged the House to read the underlying evidential material before the Tribunal and make its own judgment. But this, as the Court of Appeal correctly recognised, is a course open to an appellate court only if an error of law has been made by the Tribunal which vitiates its conclusion. In this case I conclude, differing from the Court of Appeal, that the Tribunal made no vitiating error of law. It follows that the House is not, in my opinion, entitled to trespass on the area of factual assessment and judgment reserved to the Tribunal.

16.  In the result, I would allow the Secretary of State’s appeal, set aside the Court of Appeal’s order and reinstate the order of the Tribunal. There will be no order for costs save for assessment of the respondents’ costs on the usual legally-aided basis.

LORD HOFFMANN

My Lords,

17.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it, and for the reasons he gives I too would allow the appeal and make the order that he proposes.

LORD HOPE OF CRAIGHEAD

My Lords,

18.  I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Brown of Eaton-under-Heywood. I agree with them, and for the reasons they give I would allow the appeal and make the order that Lord Bingham proposes.

19.  I agree also with what my noble and learned friend Baroness Hale of Richmond says about the caution with which the ordinary courts should approach the decision of an expert tribunal. A decision that is clearly based on a mistake of law must, of course, be corrected. Its reasoning must be explained, but it ought not to be subjected to an unduly critical analysis. As your Lordships have indicated, there are passages in the decision that is before us which might, when read in isolation, suggest that the tribunal misdirected itself. But I am quite satisfied that the decision as a whole was soundly based, and that a more accurate wording of the passages that have attracted criticism would have made no difference to the tribunal’s conclusion on the facts that the Secretary of State’s refusal of asylum in these cases should be upheld.

BARONESS HALE OF RICHMOND

My Lords,

20.  We are all agreed that the correct approach to the question of internal relocation under the Refugee Convention is that set out so clearly by my noble and learned friend, Lord Bingham of Cornhill, in Januzi and others v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426, at para 21:

“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 individual’s case holistically and with specific reference to the individual’s 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.

 
Continue