LM (Relocation – Khartoum –AE reaffirmed)
| Jurisdiction | England & Wales |
| Judge | Mrs J A J C Gleeson,Senior Immigration Judge |
| Judgment Date | 30 June 2005 |
| Neutral Citation | [2005] UKAIT 114 |
| Court | Asylum and Immigration Tribunal |
| Date | 30 June 2005 |
[2005] UKAIT 114
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Mrs J A J C Gleeson (Senior Immigration Judge)
Mrs C Bart-Stewart (Immigration Judge)
For the Appellant: Mr B Quee, Legal Representative of Noden & Company, Solicitors
For the Respondent: Ms L Tedeschini Home Office Presenting Officer
LM (Relocation — Khartoum —AE reaffirmed) Sudan
[Return to Sudan safe for man with no political profile, eastern Sudanese (African origin) returning with young family. AE applied and US State Department Report (not before Tribunal in AE) considered. Must show individual risk to appellant; Darfurian origin or African ethnicity alone insufficient. No risk at Convention level to non-Darfurian Sudanese.
Conditions in camps not ideal but evidence not sufficient to establish that internal relocation to internally displaced person camp in Khartoum alone enough to meet ECHR Article 2 and 3. Risk in internally displaced person camps limited on present evidence to students, lawyers, merchants, traders or those with perceived rebel profile who are of African ethnicity. Those with family members still in Sudan required to prove need to use internally displaced persons' camp.]
This case is reported for what it says at paragraphs 56–61 about risks to failed asylum seekers returning to the Khartoum area of Sudan, where that is not their home area, and in particular, to the risks in Khartoum internally displaced persons' camps. The hearing was a continuation reconsideration of the appellant's appeal, remitted for fresh consideration by the Immigration Appeal Tribunal before 4 April 2005, when the present Tribunal succeeded it. The procedural history of the appellant's claim is as follows: the appellant arrived in the United Kingdom on 20 October 2002 and applied for asylum two days later. His asylum claim rests upon his family and personal connection with the Beja Congress Party in the Sudan.
The Secretary of State refused to recognise him as a refugee, the reasons appearing in a letter accompanying a notice of refusal dated 10 January 2003. The letter of refusal also dealt adversely with his Article 2 and 3 claims under the European Convention on Human Rights and Fundamental Freedoms 1950.
The Secretary of State's reasoning was that the appellant's account was vague, unconvincing and lacked substantive detail or any credible corroborative evidence (although of course, in asylum cases, corroborative evidence is not a requirement). The Secretary of State expressed credibility reservations in relation to the appellant's account of his political activities, his escape from hospital on payment of a bribe, his time in hiding with his uncle, and his exit from Sudan. Overall, the appellant considered that the appellant was not telling the truth and that there was no risk on return.
The appellant appealed to an Adjudicator (as she then was). The Grounds of Appeal suggested that the Secretary of State's decision was against the weight of evidence, that the claim of political and ethnic exclusion and discrimination had not been dealt with, and that his claim engaged Articles 2, 3, 6, and 8 of ‘the Human Rights Act 1998’[sic], which is presumably a reference to the European Convention on Human Rights. Article 6 is not applicable in asylum determinations ( Maaouia v France (2001) 33 EHRR 42). The appellant did not rely upon Article 8 ECHR at the Adjudicator hearing. The appellant's wife had remained in the Sudan when the appellant fled but she joined him here in 29 June 2003, a fact which the appellant chose not to disclose or rely upon until the hearing of the reconsideration on 18 May 2005. The appellant has been legally represented throughout, at first by Dillons & Co, and latterly by Noden & Company.
The appellant gave evidence at the Adjudicator hearing. The Adjudicator did not find his account credible, for the reasons she set out in paragraphs 15–26 of her determination, and considered that the appellant would not be at risk if returned to Sudan today. The appellant appealed, characterising the Adjudicator's consideration of credibility as speculative and inadequate, and relying upon Chiver (10758). The appellant contended that the Adjudicator's determination lacked anxious scrutiny. The IAT granted permission to appeal on concerns about the Adjudicator's treatment of the claimed detention and the appellant's claimed political activities.
The Immigration Appeal Tribunal allowed the appellant's appeal. It considered that the determination was almost entirely devoid of factual findings, in particular in relation to the claimed arrest and detention of the appellant. The IAT remitted the appeal for hearing afresh.
At the beginning of the hearing, there was a preliminary issue. The appellant alleged that his wife had applied on arrival, or soon after, to Immigration Officers at Croydon to be treated as his dependant, and asked therefore that she and the two children be treated as dependants for Article 8 purposes in the reconsideration hearing. There had been no advance notice of this argument and no evidence was available to support the suggestion that the Secretary of State (and the appellant's representative) had overlooked the dependency element in the preceding two years, despite hearings at first and second instance. A skeleton argument was produced at the hearing before this panel, but not until the hearing had begun, which deals for the first time with Article 8, arguing that the appellant and his wife have an established private and family life and that to ask his wife to return to Sudan with him would constitute a disproportionate interference with this appellant's Article 8 rights. We shall return to that argument.
The Home Office Presenting Officer objected to the dependency application as far too late and taking her by surprise. She was however able to deal with the skeleton argument and a witness statement signed by the appellant's wife the day before the hearing (which also, unfortunately, was not disclosed until the middle of the hearing before us).
We had hoped to hear evidence from the person at the appellant's solicitors with conduct of these proceedings, to explain (with the file) why the dependency claim was raised so late. We adjourned when the problem became apparent, and directed Mr Quee, who is not legally qualified, to telephone Miss Shamim, who has conduct, and ask her to attend court. Mr Quee indicated that Miss Shamim had initially refused to attend, and then, after taking advice from her supervisor, indicated that ‘she was in difficulty but if [the Tribunal] insist that she should come to Court, she will have to leave what she is doing to come, so as to arrive at 2 p.m. If you insist, however, given her workload she is prepared to send a letter to Court to confirm what she disclosed to [Mr Quee]”. That was a completely inappropriate reaction to a direction from the Tribunal to attend. On further questioning Mr Quee, it appears that Miss Shamim is not a solicitor (and nor is Mr Quee). We decided to proceed with the documents which had become available during the adjournment, the skeleton argument and the appellant's wife's witness statement, but we record our concern as to the casual treatment of this appellant's claim and this Tribunal by Noden & Company.
Absent any evidence of the alleged visit to Croydon to claim as a dependant in 2003, or any mention of his wife and children before the Adjudicator or the Immigration Appeal Tribunal, we refused the variation application and proceeded to hear the reconsideration substantively. It may be that the appellant's wife and children have their own claim, but that is not a decision with which we are seised, that claim having apparently not been made yet to the Secretary of State, let alone refused.
The professional issue has no relevance to the outcome of this appeal and we put it out of our minds in considering whether the appellant could show a credible account putting him at risk on return. The Tribunal decided to refuse the application to add the appellant's wife and United Kingdom-born children as dependants at this late stage.
We then proceeded to deal with the substantive reconsideration, on the basis that the original Adjudicator had made a material error of law and that further findings of fact were needed before we could proceed under rule 31(3) to substitute a fresh decision to allow or dismiss the appeal.
The Tribunal heard oral evidence from the appellant and his wife, and oral and written argument from the appellant's legal representative. We also heard oral argument from the Presenting Officer.
We reminded ourselves of the low standard of proof appropriate to claims under the Geneva Convention on the Status of Refugees and Stateless Persons 1951, its protocols, and the European Convention on Human Rights and Fundamental Freedoms 1950. The appellant must show a reasonable degree of likelihood or real risk that his core account is true, and that the appellant would suffer persecution or treatment contrary to the relevant Article of the ECHR on return to the Sudan. Such a credibility decision must be based on all the evidence before us, including oral evidence, personal documents, and country background evidence of country conditions. We also remind ourselves that in certain circumstances, even a returning asylum seeker whose claim is not credible may be at risk, and that we must therefore consider the country background evidence in this respect also. The burden of proof, at the lower standard, remains on the appellant to show that his claim engages a relevant provision of the Refugee Convention or ECHR.
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