Hamid, Gaafar and Mohammed v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Maurice Kay
Judgment Date25 October 2005
Neutral Citation[2005] EWCA Civ 1219
Docket NumberCase No: C5/2005/1328+1328A+1329+1330 PTA
Date25 October 2005

[2005] EWCA Civ 1219

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON REFERENCE FROM THE ADMINISTRATIVE COURT

QUEEN's BENCH DIVISION (ELIAS J)

Before

the Master of the Rolls

Lord Justice Maurice Kay and

Sir Christopher Staughton

Case No: C5/2005/1328+1328A+1329+1330 PTA

CO/3488/2005

Between
(1) Hamid
(2) Gaafar
(3) Mohammed
Appellants
and
Secretary of State for the Home Department
Respondent
Lord Justice Maurice Kay

This is the judgment of the court.

1

These three appeals are the first to be referred to the Court of Appeal by a High Court Judge sitting in the Administrative Court pursuant to section 103C of the Nationality, Immigration and Asylum Act 2002. Section 103C was inserted into the 2002 Act by the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The new procedure accompanied the establishment of the Asylum and Immigration Tribunal with effect from 1 April 2005. The three appellants come from the Darfur region of Sudan. Hamid and Mohammed are members of the Zaghawa tribe. Gaafar is a member of the Al Berget tribe. Each of them claimed asylum upon arrival in the United Kingdom. In each case the Secretary of State refused the application. Hamid and Mohammed each appealed to an adjudicator but their appeals were dismissed. In Gaafar's case, the appeal was heard by an immigration judge after the establishment of the AIT in April. His appeal was also dismissed. All three made applications under section 103A of the 2002 Act for reconsideration of the adverse decision. Such an application now goes before a senior immigration judge on paper. The three applications for reconsideration were unsuccessful.

2

Following a refusal of reconsideration by the AIT, application may be made to the Administrative Court under section 103A. Such an application goes before a judge as a paper application for him to consider whether he should order the AIT to reconsider its decision because it may have made an error of law. However, section 103C then provides:

"(1)On an application under section 103A in respect of an appeal the appropriate court, if it thinks the appeal raises a question of law of such importance that it should be decided by the appropriate appellate court, may refer the appeal to that court."

In England and Wales, "the appropriate court" is the Administrative Court and "the appropriate appellate court" is the Court of Appeal.

3

The three applications to the Administrative Court were considered by Mr Justice Elias on 10 June 2005. He has referred them to the Court of Appeal pursuant to section 103C.

4

In his written reasons Mr Justice Elias stated:

"1. I see no basis for challenging the findings of fact of the adjudicator [or immigration judge]. Equally he was entitled to conclude that it would not be unsafe or unduly harsh for the applicant to live in Khartoum. However the adjudicator [or immigration judge] concluded that the applicant faced a risk of persecution in his home area in Darfur. The evidence suggests that the State is either involved in or complicit in that persecution. The issue therefore arises whether a relocated person in those circumstances can be required to rely upon the protection from the State that is party to the persecution.

2. I have seen a starred determination of the Asylum and Immigration Tribunal, A E (Sudan) UKAIT (2005) 00101. The President, Mr Justice Hodge, concluded that relocation is an option for those fleeing Darfur. It is a carefully reasoned decision but in my view there is a respectable argument to the contrary and it is desirable that the matter is considered by the Court of Appeal."

5

Now that the matter is before Court of Appeal under section 103C, the powers of this Court include:

"(a) to affirm the Tribunal's decision;

(b) to make any decision which the Tribunal could have made;

(c) to remit the case to the Tribunal;

(g) to restore the application under section 103A to the Administrative Court."

6

Before turning to the issues of law to which the jurisdiction of this court is limited, it is necessary to say a little more about the facts of each case.

Hamid

7

This appellant is a member of the Zaghawa tribe and lived at Oro in Darfur. The village was attacked by a group known as the Janjaweed in November 2003. Hamid went to Taweela, but in October 2004 this village was also attacked by the Janjaweed. In the first attack his father and brother were killed. In the second attack his mother was killed. Hamid then went to the village of Al Shyria and from there travelled by Port Sudan to the United Kingdom. The adjudicator accepted Hamid's account of his background and what had happened to him in Sudan. He concluded that Hamid had suffered persecution by reason of his ethnicity and that he would be at risk of further persecution if he were to return to his home area. However, the adjudicator went on to conclude that Hamid could live in Khartoum. He accepted that on return, Hamid would be questioned at Khartoum airport but he found that in the absence of any political involvement there was no real likelihood of a risk of persecution or of treatment contrary to Article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). He also concluded that, given his personal circumstances, it would not be unduly harsh for Hamid to relocate to Khartoum.

Mohammed

8

The basis of Mohammed's claim for asylum was that he is a member of the Zaghawa tribe and that he had a history of membership of or support for the Sudanese Liberation Army (SLA). His home was in Abogamra in Darfur. In 2003 this village was attacked by Arab militia. He then moved to Nayala where he lived for about a year. From there he moved to Khartoum in March 2004, having previously spent some time in Omdurman because he feared arrest in Nayala. He left Sudan at the end of September 2004.

9

The adjudicator accepted that it was too dangerous for Mohammed to return to Darfur by reason of his race and that if he were returned there he would be persecuted on grounds of ethnicity. However, he further concluded that there was no evidence that Darfurians generally are arrested and ill-treated in Khartoum or in locations outside Darfur. The adjudicator did not accept Mohammed's evidence as to his political involvement. He found it to be implausible that Mohammed had undertaken political activities when in Khartoum. He further found that Mohammed had not been involved in politics either in Darfur or in Khartoum, that he was not a genuine supporter of the SLA, and that the Sudanese authorities had not targeted him or been interested in him by reason of any connection with the SLA. He further concluded that Mohammed had no real difficulties in Khartoum and that although it is difficult for many people from Darfur to settle in Khartoum it was not unreasonable or unduly harsh for Mohammed to do so. He would not be persecuted in Khartoum. It was "a viable internal relocation option".

Gaafar

10

Gaafar's application was on the basis that he is a member of the Al Berget tribe and lived in the village of Tawila. In March and November 2004 this village was attacked by the Janjaweed militia. After that, Gaafar said that he started collecting money for the "Sudanese Liberation Movement". He had left Tawila shortly after the November 2004 attack when he heard that his father and brother had been arrested by Sudanese 'security agents' on suspicion of supplying weapons to the movement. Gaafar believed the same security agents also suspected him of supplying weapons. He travelled to Al Kofra City and from there to the United Kingdom.

11

The immigration judge concluded that it was not credible that either Gaafar or his father had collected money for the movement. He also rejected Gaafar's account as to what had happened to his father and brother and concluded that this went to the root of Gaafar's credibility in respect of his claimed fear of persecution on political grounds. He then considered the situation in Darfur and concluded that the issue was whether "internal flight is possible as a person of his ethnicity but with no political profile, either actual or imputed". The adjudicator concluded that upon return Gaafar would face questioning by the Sudanese immigration authorities at Khartoum airport. He further concluded that there was not a real risk that the authorities would relocate minority African tribe members who were in internal displacement camps and that in such a camp Gaafar would not face treatment contrary to Article 3 of the ECHR. It would not be unduly harsh for Gaafar to relocate to the Khartoum area.

12

In each of the three cases, when a senior immigration judge considered the application for reconsideration under section 103A, the conclusion was that the decision of the adjudicator or immigration judge disclosed no material error of law.

The Important Question of Law: Internal Relocation and State Persecution

13

The question which caused Mr Justice Elias to refer these cases to the Court of Appeal is apparent from the two final sentences of the first paragraph of his reasons:

"The evidence suggests that the State is either involved in or complicit in … persecution. The issue therefore arises whether a relocated person in those circumstances can be required to rely upon the protection from the State that is party to the persecution."

14

It is common ground that the starting point is Article 1A(2) of the Refugee Convention which provides that a person is a refugee if:

"owing to a...

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