AA (Uganda) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Buxton,Lord Justice Lloyd,Lord Justice Carnwath
Judgment Date22 May 2008
Neutral Citation[2008] EWCA Civ 579
Docket NumberCase No: C5/2007/2324

[2008] EWCA Civ 579

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL

IMMIGRATION JUDGE COKER

AA/03084/2006

Before:

Lord Justice Buxton

Lord Justice Carnwath And

Lord Justice Lloyd

Case No: C5/2007/2324

Between
Aa (uganda)
Appellant
and
The Secretary Of State For The Home Deparment
Respondent

Mr Peter Morris (instructed by Kingston and Richmond Law Centre) for the Appellant

Miss Claire Weir (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent

Heaaraing dates:10April

Lord Justice Buxton
1

The facts of this case are very disturbing. It is recorded by the Asylum and Immigration Tribunal (Immigration Judge Coker), from whom this appeal is brought, that the following matters were agreed:

i) AA was born in 1986 in Northern Uganda. Her father, who had been in the Ugandan Army, was beaten to death in about 1990, and her mother was killed some two years later, at the hands of the rebel Lord's Resistance Army.

ii) She was then lived with, successively, two aunts and an uncle, all of whom treated her brutally and abusively. The uncle forced her do housework instead of going to school, and intercepted money sent for her support by an aunt Helen who lived in the United Kingdom.

iii) Travelling on a lawfully issued visa AA was brought to the United Kingdom by Helen on 23 December 2003. She told Helen about the abuse that she had suffered, and Helen stopped sending money to the uncle: who reacted by threatening to kill AA.

iv) While living with Helen in the United Kingdom AA was raped by Helen's husband, and as a result had an abortion in February 2005. She told Helen of the rape in November 2005, but Helen ridiculed her. AA then attempted suicide.

v) The police interviewed Helen and her husband in relation to the rape, AA being the complainant, but did not pursue charges. It should however be emphasised that it was accepted throughout the present procedure that the rape had indeed taken place.

vi) The police arranged for the removal of AA from the household, and she was taken into the residential care of a project for vulnerable young people, where she still lives.

The course of these proceedings

2

AA originally applied unsuccessfully for asylum. An appeal against that decision came before Immigration Judge Denson in 2006. The asylum claim was withdrawn in those proceedings, but a claim was pursued on article 3 and 8 grounds. Immigration Judge Denson rejected that latter claim. Reconsideration was ordered of Immigration Judge Denson's decision, for reasons that do not now concern us. However, by the time that the reconsideration came before Immigration Judge Coker in July 2007 there had come into force the Refugee Or Person In Need Of International Protection (Qualification) Regulations 2006, which require the consideration of whether persons who do not qualify on other grounds should be granted humanitarian protection in the United Kingdom if they are in danger of suffering serious harm in their country of origin. Such a grant is, by paragraph 339O of the Immigration Rules, not available when a person could avoid the serious harm by relocation to another part of his home country and he can reasonably be expected to stay in that other part of the country. Those are the same concepts, of internal relocation and of whether it would be unduly harsh to expect such relocation, as apply in asylum cases.

3

In the case of AA it was very properly accepted by the Secretary of State that she would be at serious risk of suffering serious harm were she to be returned to northern Uganda. The live issue, therefore, was whether it would be unduly harsh to return her to Kampala, where those dangers would not obtain.

The evidence

4

Immigration Judge Coker records at §10 of her determination that it was agreed by the representatives before her that “the facts as found” by Immigration Judge Denson should stand. As I shall mention below, that agreement produced some confusion during this appeal. The evidence before Immigration Judge Denson, so far as it comes into issue in this appeal, consisted of

* A COI report on Uganda

* A country expert report on Uganda by a Dr Jennings

* A psychiatric report by Dr Frances Marks FRCPsych written early in 2006

* A psychotherapy report by Miss Julia Britton

* A letter from the pastor of a church in London attended by AA.

5

Dr Jennings' report in relation to relocation to Kampala did not impress Immigration Judge Denson, and was not further relied on. In its place there was produced to Immigration Judge Coker at her hearing on 27 June 2007 a report of a Dr Nelson, Senior Research Fellow in the Anthropology Department of Goldsmiths College, who has extensive research interests in the impact of urbanisation on vulnerable women in East Africa. Dr Nelson directed her report specifically at the position on relocation to Kampala, in relation to which she had consulted a number of colleagues with recent experience in that area.

6

We were told from the bar that it had been hoped to produce a more up to date report from Dr Marks, but either because of her retirement or for other reasons that had not proved possible. It does not seem that that was explained to Immigration Judge Coker, something that for reasons shortly to be explained was unfortunate. Miss Britton produced a short updating report, 29 May 2007, which added three paragraphs to her report as it had been before Immigration Judge Denson.

The law

7

The law on internal relocation has been recently been confirmed by the House of Lords in AH(Sudan)v SSHD [2007] 3 WLR 832. At §5 of his speech Lord Bingham of Cornhill recalled what he had said in Januzi v SSHD [2006] 2 AC 426[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.

Lord Bingham continued:

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.

And Lord Brown of Eaton-under-Haywood with great respect valuably explained some further aspects of the jurisprudence of undue harshness when he said, at §42,

If a significant minority [of persons in the home country] suffer equivalent hardship to that likely to be suffered by a claimant on relocation and if the claimant is as well able to bear it as most, it may well be appropriate to refuse him international protection…..For these respondents, persecution is no longer a risk. Given that they can now safely be returned home, only proof that their lives on return would be quite simply intolerable compared even to the problems and deprivations of so many of their fellow countrymen would entitled them to refugee status. Compassion alone cannot justify the grant of asylum.

Basing itself on those principles, the House held that it had been open to the Asylum and Immigration Tribunal in AH(Sudan) to conclude that it would not be unduly harsh for former subsistence farmers in Darfur to be expelled to Sudan, not back to Darfur but to slum conditions in refugee camps in Khartoum, granted that many other persons had to endure those conditions; and that this court had not been justified in interfering with that decision.

8

Immigration Judge Coker did not have the benefit of AH(Sudan), which was decided after her determination, but she was shown Januzi. From that case she drew, at §43 of her determination, the guidance of Lord Hope of Craighead, [2006] 2 AC 426[47]:

The words “unduly harsh” set the standard that must be met for [relocation] to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in the country of his nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.

The position of unaccompanied women in Kampala

9

The conditions awaiting AA on her return to Kampala were described in the report of Dr Nelson, from which it is necessary to quote in some detail. Dr Nelson said:

[AA] has almost no chance of getting a formal sector job. First, she has no qualifications or formal training and her chances of improving her educational status in Kampala are nil….Secondly, in East Africa contacts and information are critical in finding jobs….contacts and assistance from relatives and friends can be critical in even getting to the interview stage of a job application. Her only hope will be some sort of self employment in the informal economy. Here she will also be at a disadvantage because she has no informal home training in any sort of activity which might generate an income in the informal sector (trading, cooking food, sewing, embroidery). The only jobs she could hope to obtain would be that of house servant or bargirl or sex worker (and bargirls are just sex workers by another name). Her chances of finding a job as a house servant will be limited. Almost inevitably these are found through contacts via friends and relatives since people are reluctant to bring a total stranger into their domestic circumstances…Sadly there is an unending demand...

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