KK (Unreported decisions - Practice Directions)
| Jurisdiction | England & Wales |
| Judge | President,Dr H H Storey,Senior Immigration Judge |
| Judgment Date | 06 February 2006 |
| Neutral Citation | [2006] UKAIT 8 |
| Court | Asylum and Immigration Tribunal |
| Date | 06 February 2006 |
[2006] UKAIT 8
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
The Hon. Mr Justice Hodge OBE (President)
Mr C M G Ockelton (Deputy President)
DR H H Storey (Senior Immigration Judge)
For the Appellant: Mr R André, instructed by White Ryland
For the Respondent: Mr C Avery, Home Office Presenting Officer
KK (Unreported decisions — Practice Directions) Sudan
There was a failure on the part of the appellant's representatives in this case to follow both Tribunal Practice Directions and Supreme Court Practice Directions relating to citation of unreported decisions. Unreported decisions are not to be cited except in accordance with such Practice Directions.
The appellant, a national of Sudan, seeks reconsideration of a determination of the Immigration Judge, Mrs M.M Shanahan, notified on 5 April 2005, dismissing his appeal against a decision to refuse to grant asylum and to remove him as an illegal entrant by way of directions under paragraphs 8–10 of Schedule 2 to the Immigration Act 1971. The initial question we must address is whether the Immigration Judge materially erred in law.
The basis of the appellant's claim was that he was a member of the Zaghawa tribe and lived in a village called Wadi Karou. He made a living there as a trader. His problems began on 11 July 2004 when his village was attacked and pillaged by the Janjaweed. He was one of the survivors. He managed to escape, but on the way to Manyachi was kidnapped by government security forces who accused him of being a black African and supporter of the Sudanese People's Liberation Army (SPLA). He was transferred to Al Niyala where he was kept in solitary confinement until 12 September 2004. When he became ill security forces took him to Niyala Hospital. One of his friends helped him to escape. Going first to Labadou he was then taken to Port Sudan where a ship took him to the UK. He claimed that his brother was a member of the opposition party (SPLP) and that he was accused of being a member of the Movement of Justice (JEM) in Sudan.
The Immigration Judge did not find any aspect of the appellant's account credible except that he was a member of the Zaghawa tribe. On this basis she was prepared to accept that at this time he could not safely be returned to Darfur. As regards internal relocation, she did not think he could live safely in the south of Sudan. She considered, however, that he could relocate to Khartoum.
‘66. The other option available to the appellant is to remain in Khartoum to where he would be returned. The objective evidence sets out the situation with the IDP camps in the areas around Khartoum and it is clear that conditions are difficult and harsh. Mr Andre referred to the report at page 21 of the appellant's bundle which deals with the situation at the El Salaam camp in Omdurman. He argued that the humanitarian situation is such that the appellant cannot be expected to relocate to any of these camps or to Khartoum. I have also had regard to the evidence about arrests of Darfurians outside Darfur and in Khartoum. However these arrests appear to have been due to actual or perceived support of one of the armed opposition groups in Darfur, students, lawyers or human rights defenders.
67. I consider that is possible for the appellant to remain in Khartoum. Given my above findings he has no political standing or indeed any other factors, apart from his ethnicity, which would bring him to the adverse attention of the authorities. It is likely that he will be questioned at the airport on return but there is no evidence that he will be detained or ill-treated such as to cause persecution or treatment contrary to Articles 2 or 3.
68. In conclusion I am not satisfied that the appellant's account is credible but he is a member of the Zaghawa tribe. He cannot be returned to Darfur at this time but there is no risk of persecution or breach of Articles 2 or 3 by return to Khartoum. I do not consider that it would be unduly harsh to expect the appellant to relocate there, he is a young man who has given no evidence of any continuing health problems and while I accept the difficult conditions in these camps it does not found a claim under Articles 2 or 3.’
In the grounds of appeal it was submitted firstly that the Immigration Judge had erred by not placing enough emphasis on the objective material indicating that Khartoum was unsafe, in particular paragraph 2.2 of the December 2004 Amnesty International report, ‘Sudan: No one to complain to: No respect for the victims, impunity for the perpetrators’, which highlighted arrest and ill-treatment of Darufrians in IDP camps around the capital. This evidence showed, it was argued, that Darfurians are targeted in Khartoum by virtue of ethnicity alone, and that the risk is even higher for males of fighting age. The second main submission was that the Immigration Judge failed to place enough emphasis on the inhumane conditions in the Khartoum IDP camps: no detailed reasoning was provided for rejecting the appellant's evidence demonstrating that the authorities have bulldozed IDP camps around Khartoum. It was submitted that the Immigration Judge erred in particular by failing to give reasons for distinguishing the appellant's case from the Tribunal case of Otnam, HX/08803/2003 notified on 27 July 2004 in which it was found that Khartoum was not appropriate or reasonable as a relocation alternative, it being unduly harsh, given suspicions about Darfurians and the fact that at least one camp had been bulldozed and circumstances are to say the least difficult. Conjoined with this ground, it was submitted that the appellant wished to rely on an order made by Mr Justice Collins in an application for statutory review by an appellant Suliman (CO/0953)[2005] in which the judge mentions Otnam.
Miss D.K. Gill, the Senior Immigration Judge who dealt with the application for reconsideration, rejected the appellant's first ground of appeal. She said it amounted to no more than a disagreement with the Immigration Judge's findings and an attempt to reargue issues that were before the Immigration Judge. Ms Gill found that the Immigration Judge had ‘carefully considered’ the objective evidence and had given her reasons for concluding that it would be safe for the appellant to relocate. Ms Gill added that the Immigration Judge's finding on safety was one which was fully open to her on the evidence which was before her, for the reasons she gave.
However, Miss Gill stated that it was arguable the Immigration Judge had erred in law with regard to her finding that it would not be unduly harsh for the appellant to relocate to Khartoum, in that:
‘(a) she failed to give adequate reasons in law for reaching that finding; and
(b) she failed to refer to the Otnam case … I am satisfied that the [Immigration Judge] was given a copy of the determination in that case. It appears that the previous Practice Direction 10 (which was still in force at the date of hearing) was not complied with. This may all be relevant in determining the error of law point. I have had regard to the reasons given in the decision of Sir Andrew Collins on 23 February 2005 (reversing the Tribunal's refusal of permission on that case). The parties may also wish to address the Tribunal on the recent reported decision [2005] UKIAT 00069)).
The latter was a reference to the Tribunal case of MM (Sudan) [2005] UKIAT 00069 notified on 9 March 2005.
The bundle of documents prepared by the appellant's representatives included several items which post-dated the Immigration Judge's determination. Mr André highlighted the reference to a 21 October 2005 Amnesty International report of certain IDP camps being summarily destroyed and their inhabitants being cast out into the desert. We had to remind Mr Andre that he could not rely on these items of evidence in order to demonstrate a material error of law. We also expressed our concern that, insofar as he sought to rely on post-determination items, he — or at least those instructing him — had not seen fit to include the Country Guidance case of AE (Relocation — Darfur — Khartoum an option) Sudan CG [2005] UKAIT 00101. There is a general duty on representatives to ensure that the materials they adduce cover the latest Tribunal guidance.
We asked Mr André to explain the legal basis for his citation of Otnam. Practice Direction 10 which was still in force when the Immigration Judge (then Adjudicator) heard this appeal on 7 March states:
‘ Immigration Appeal Tribunal
Practice Direction 10
Office of the Chief Adjudicator
Practice Direction CA3 of 2003
Citation of Determinations
1. From 19 th May the Immigration Appeal Tribunal will cease the practice of reporting and publishing all its determinations. From that time, determinations will be either ‘reported’ or ‘unreported’. The decision whether to report a case is that of the Tribunal and is not perceived to be an issue in which the parties to the appeal have an interest.
2. Reported determinations will receive a natural citation number of the form [2003] UKIAT 00001 and will be widely available. They will be an anonymised and will be cited by the neutral citation number. Determinations without a number in this form are unreported.
3. Unreported determinations will receive no neutral citation number. They will be sent to the parties but will not be published. Anonymised version will be deposited in the Supreme Court Library. (Negotiations for an electronic depository are in progress).
4. From the date of this Practice Direction, no unreported determination of the Tribunal, and no determination of an Adjudicator, may be cited in proceedings before any Adjudicator or the Tribunal unless either:
(i) the claimant in the...
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