AE (Relocation-Darfur-Khartoum an option)
| Jurisdiction | England & Wales |
| Judge | President |
| Judgment Date | 03 May 2005 |
| Neutral Citation | [2005] UKAIT 101 |
| Court | Asylum and Immigration Tribunal |
| Date | 03 May 2005 |
[2005] UKAIT 101
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr Hon. Mr Justice Hodge (President)
Miss E R Arfon-Jones (Deputy President)
For the Appellant: Ms L Saunders, Counsel
For the Respondent: Ms L Hooper, Counsel
AE (Relocation-Darfur-Khartoum an option) Sudan CG
Internal relocation in the Khartoum area is an option for those fleeing from Darfur. The available evidence does not show that on any such relocation every Darfurian faces a real risk of persecution or ill treatment contrary to article 3
The appellant is a citizen of the Sudan. He was born on the 5 th October 1985 so is now 19. He claimed asylum in the United Kingdom on his arrival on 24 th June 2003. That claim was refused but he was granted exceptional leave to remain. His application for further leave led to a refusal to vary leave to enter or remain by the respondent on 19 th April 2004. The appellant appealed and his appeal was heard by Mr F Pieri, Adjudicator, in Glasgow.
The adjudicator found the appellant credible. He accepted that the appellant is a member of the Massaleit tribe from the Darfur area of Sudan. In his determination promulgated on the 6 th August 2004 the adjudicator concluded:–
“It seems to me clear when this appellant's past experiences are placed in context of the current background material that there is a real risk of the appellant suffering ill-treatment amounting to persecution and a breach of Article 3 in the Darfur area now. Members of his close family have suffered terribly in the past. The situation in the Darfur area is still dire. The ill-treatment he risks suffering is on account of his race and so falls within the terms of the Refugee Convention.”
The adjudicator having concluded that the claimant had a well-founded fear of persecution in the Darfur area of Sudan went on to consider the question of internal relocation. He concluded at paragraph 42 “Internal relocation has no part to play in the circumstances of this appeal”. It is against that decision that the Secretary of State applied for permission to appeal to the Immigration Appeal Tribunal.
That application was considered by Mr P R Lane (Vice President). He granted permission to appeal and concluded that the determination of the adjudicator contains arguably a mistake in law in the application by the adjudicator of the concept of internal relocation within the context of the Refugee Convention.
By Article 5 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Commencement no. 5 and Transitional Provisions) Order 2005 (SI 2005/230), any appeal which immediately before the commencement of the 2004 Act is pending before the Immigration Appeal Tribunal shall, after commencement of that Act, be dealt with by the Asylum and Immigration Tribunal as if it had originally decided the appeal and it was reconsidering its decision.
As this is an appeal before the Asylum and Immigration Tribunal we will refer to the claimant as the appellant and the Secretary of State as the respondent notwithstanding the fact that the application for permission to appeal was made by the Secretary of State. In accordance with paragraph 14.8 of the Practice Directions of the President of the AIT issued on 4 th April 2005, we must consider whether the adjudicator made a material error in law.
We first considered whether the determination in this case contained a material error of law. The Adjudicator dealt with the issue of internal relocation and made his findings as follows:–
“ 38. That leaves the question of internal relocation. Mrs Ahmed submitted that the background material shows that theMassaleit do not suffer at the hands of the authorities out with the Darfur area. I agree. The background material shows that there are many displaced people from Darfur living elsewhere in Sudan. This however appears to me to raise a difficult issue. I shall explain.
39. Underlying the whole question of refugee status is surrogate protection. In the normal course a person living in an area of a country where he is at risk of persecution at the hands of non state agents who act with impunity in that area can be expected to relocate to another safe area of the country still controlled by the government, if such an area exists, as the government will protect him in that other area. That provides the paradigm example of internal relocation. The situation however in Darfur appears to me to be far removed from this.
40. In Darfur Arab militias are attacking black Africans such as the Massaleit. These Arab militias were the source of the ill-treatment endured by the Appellant's family. What distinguishes this from the typical example I set out earlier is that there appears to me on the background evidence, at the very least, a real risk that these Arab militias are acting with the support and the complicity of the Sudanese Government. In these circumstances does internal relocation to another area of Sudan have any part to play? The answer to this, in my view, can be found be examining the persecution which this appellant risks facing. It is more than a risk of persecution by Arab militias. It is a risk of persecution by Arab militias acting with the support of the government.
41. I return to the United Nations News document of 23 rd June 2004. That states that a UN Human Rights Report has found many human rights violations in the Darfur area including ethnic displacement. The United Nations News Bulletin of 2 nd April 2004 talks of forced depopulation of entire areas. On the whole evidence there appears to me to be a real risk that forced depopulation is one of the aims of the Arab militias. As I have said there also appears to me at the very least a real risk that the Arab militias are acting with the support and complicity of the Sudanese government. There appears to me to be something fundamentally flawed in the suggestion that in such circumstances the Appellant should be expected to relocate to Khartoum or some other area in Sudan rather than seeking surrogate protection of the international community. By moving to another area of Sudan he could not be said to be obtaining the protection of the government against the persecution sponsored by the same government in Darfur. At best, it seems to me, all that could be said is that the Appellant would have moved to an area where his persecutors have no interest in him and would have gone along with one of his persecutors' objectives namely that he and his kind be displaced from the area where he once lived. To go along with the wishes of his persecutors may result in his being safe but it is far removed from his obtaining protection from his persecutors. I find support for these conclusions in the Michigan Guidelines on the internal protection alternative and Macdonald, Immigration Law Practice paragraph 12.43.
42. In my view therefore internal relocation has no part to play in the circumstances of this appeal.”
The Secretary of State argued that the adjudicator made a legal mistake in the manner in which he considered internal relocation. It is said he failed to consider the argument raised with him that the appellant will not have any need for protection if he is relocated to a different area. Even if it were accepted that the State was complicit in the events of Darfur that does not rule out the possibility that a safe haven cannot be found elsewhere in Sudan. He is further said to have erred in finding that the appellant by moving to another area in Sudan would not be availing himself of the protection of the State. It was also suggested that there was no objective evidence that indicates the problems in Darfur extend out with the Darfur area. Indeed there is no real risk of persecution says the Secretary of State for the appellant if he were to relocate.
Counsel for the appellant described the activities of the militias in Darfur supported by the Sudanese government as ethnic cleansing and forcible displacement. It was said this continues in any place of relocation. The adjudicator adopted the right approach. The persecution in Darfur is government sponsored. Reliance was placed on paragraph 31 of the UNHCR Guidelines on International Protection … “Internal Flight or Relocation (UNHCR 23 rd July 2003)”. At paragraph 31 it is said “Where internal displacement is a result of ““ethnic cleansing”” policies, denying refugee status on the basis of the internal flight or relocation concept could be interpreted as condoning the resulting situation on the ground and therefore raised additional concerns”.
We are satisfied that the adjudicator made a material error of law in his conclusion on the issues of internal relocation. The appellant was held to be a Massaleit. The adjudicator concluded members of that tribe do not suffer at the hands of the authorities outwith the Darfur area and that there are many displaced people from Darfur living elsewhere in Sudan. The internal relocation alternative would, the Adjudicator concluded, have meant the claimant moving to an area where his persecutors have no interest in him. But he would be displaced from the area where he had once lived. That it was said “…may result in his being safe but it is far removed from his obtaining protection from his persecutors”.
The proper start-point for any consideration of the question of internal relocation is set out in paragraph 91 of the 1979 UNHCR Handbook as follows:–
“Relocation Within County of Origin.
Where it appears that the persecution is clearly confined to a specific part of the country's territory, it may be necessary in order to check that the condition laid down in Article 1 a of the Geneva...
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