MH (Darfurians: relocation to Khartoum?)

JurisdictionEngland & Wales
JudgeANDREW JORDAN,SENIOR IMMIGRATION JUDGE
Judgment Date03 April 2006
Neutral Citation[2006] UKAIT 33
CourtAsylum and Immigration Tribunal
Date03 April 2006

[2006] UKAIT 33

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Before:

Mr Andrew Jordan, Senior Immigration Judge

Mr D.G. Zucker, Immigration Judge

Between:
MH
Appellant
and
The Secretary of State for the Home Department
Respondent

For the Appellant: Ms C. Ganning of Halliday Reeves, solicitors

For the Respondent: Mr P. Keane, Home Office Presenting Officer

MH (Darfurians: relocation to Khartoum?) Sudan CG

On reviewing the background country material both past and present, the view of the Tribunal is that relocation to Khartoum is still in general a viable option for those from Darfur

DETERMINATION AND REASONS
1

The appellant is a citizen of Sudan who said he was born on 8 September 1986, although the Secretary of State disputed this. At the hearing before the Immigration Judge, the appellant was due to be 18 within a few days and the Judge concluded in paragraph 27 of the determination that there was no adequate material to dispute the appellant's age and accepted that he was born on the date claimed. No challenge is made to that finding. The appellant is now aged 19.

2

The appellant stated that he entered the United Kingdom on 6 March 2004, whilst still a minor, avoiding immigration controls. It is accepted that he claimed asylum on that day. The Secretary of State rejected his asylum claim in a decision made on 15 April 2004. On 21 April 2004, he made a further decision to issue directions for the appellant's removal to Sudan. This decision gave rise to a right of appeal which the appellant exercised by serving a notice of appeal on 4 June 2004.

3

When the appeal came before the Immigration Judge, Mr A.B. Caskie, on 3 September 2004, he allowed the appeal in a determination promulgated on 27 September 2004 both on asylum and human rights grounds.

4

The Secretary of State appealed and the Tribunal determined that the Immigration Judge had made a material error of law and directed that the appeal be heard afresh. In so ordering the Tribunal set out its reasons in these terms:

  • “1. This was an appeal by the Secretary of State against the decision of an Adjudicator (now Immigration Judge) Mr A. B. Caskie, sitting at North Shields on 3 September 2004, allowing the appeal on asylum and human rights grounds of the appellant, a citizen of Sudan, against the decision of the respondent to refuse asylum and give directions for his removal. Since permission to appeal was given, but the appeal had not been heard by 4 April 2005, it proceeds as if reconsideration had been ordered on review by the present Tribunal.

  • 2. We had full submissions from the parties and were satisfied that the grounds were made out by Mrs Pettersen (HOPO). Although Miss Ganning took us through the objective material that had been before the Adjudicator, she did not identify any passages in the objective material to support or justify the conclusion reached by the Adjudicator. We were satisfied that there would have to be a reassessment of the objective evidence and in the light of the additional evidence to be submitted and as the proceedings were being conducted by video link we were satisfied that the case would have to be adjourned for a consideration of the objective evidence on another occasion.

  • 3. The error of law was that the Adjudicator misinterpreted the objective evidence or there was no satisfactory evidence to support his decision.

  • 4. We decided to adjourn for the reasons given and therefore the case will be reconsidered on its merits at a future date by the Tribunal.”

5

In his interview, conducted in Liverpool on 5 April 2004 in Arabic, the appellant stated that he was a Muslim from the Tama tribe and came from outside Kobabiya in Darfur where he and his family had land which they farmed and on which they reared livestock. The family consisted of the appellant's parents, two brothers and two sisters. They were attacked in July 2003 by the Janjaweed militia supported by the Sudanese government. The appellant managed to escape from the attack and was told by his father that his two brothers had been abducted by the militia. On the following day, the bodies of his brothers were found. His father sold crops and livestock in order to enable the appellant to move to Taweela where he stayed with his maternal uncle for five months. In his answer to question 37 of his interview, the appellant stated that members of the Zaghawa, Massaleit, Tama and Fur tribes formed a group called Equality and Justice Party [JEM] and that government troops targeted young people in the area on suspicion of involvement in what was perceived to be an anti-government party. The appellant decided to flee and travelled by lorry to Port Sudan where he fled from the country.

6

The appellant also claimed that as a member of the Tama tribe he suffered discrimination in employment and education. He claimed that, should he be returned to Sudan, he would be killed by the government because he fled the country.

7

In paragraph 32 of his determination, the Immigration Judge accepted the core of the appellant's account. In particular, he accepted the appellant is a citizen of Sudan who had lived for much of his life in western Darfur and was a member of the Tama tribe who was at risk of persecution if he were to return to his home area as a result of his ethnicity. In paragraph 33, however, the Judge noted the Secretary of State's contention that the appellant could relocate to another part of Sudan. The Judge summarised the background material by stating that none of the material indicated that any of the population fleeing from Darfur had fled to Khartoum. Accordingly, he was not satisfied that the absence of material about such individuals facing persecution in Khartoum established those from Darfur were safe in Khartoum. He said, in paragraph 34:

“Despite concluding that there is no evidence of the population of Darfur facing any difficulties in Khartoum I consider that the reason for this is not because the population of Darfur are not facing difficulties in Khartoum. It is absolutely clear that an enormous number of individuals (in excess of 200,000) have fled from Dafur to Chad where a further 1.2 million are internally displaced. It is clear to me that there is no evidence of any of the population in Darfur seeking refuge in Khartoum. I accept the evidence presented to me that a great many of the horrendous results which have occurred within Darfur are caused by, encouraged by or linked to elements of the Sudanese state. I also consider that the evidence before me indicates that there are efforts by the Sudanese government and their official and unofficial agents to ethnically cleanse the Darfur region. Against that background it appears to me that any individual emanating from Darfur who arrived in Khartoum would be at substantial risk.”

8

Finally, in paragraph 35 of his determination, the Immigration Judge made an alternative finding that, even if he were wrong in his assessment as to the reason for the absence of evidence of difficulties faced by the Darfurian population in Khartoum, there was a serious possibility that if the appellant were returned to Sudan and were to attempt to take up residence in the area of Khartoum, he would be at risk of being forced by the Sudanese authorities to return to the Darfur region. It was for those reasons that he allowed the appeal.

9

The Secretary of State claimed in the grounds of application that, in essence, it was perverse of the Immigration Judge to find that the fact that there was no evidence that those from the Darfur region were persecuted in Khartoum might be explained by the fact that there were no Darfurians in the Khartoum area. It was this finding that the Tribunal determined was not supported by any of the background material.

10

In the light of our identification earlier of a material error of law, we were invited to make a fresh assessment of the risk on return using background material that was not before the Immigration Judge. Indeed, this fresh material (identified later in our determination) was not before the Tribunal in the series of cases in which the Tribunal has sought to provide guidance about the general risk faced by Darfurians who have been displaced by the conflict and have re-settled in and around Khartoum. The appeal, therefore, raises the issue as to whether the earlier decisions can now be supported by current information.

Tribunal guidance on risk to Darfurians
11

Before proceeding further, we should summarise past Tribunal cases seeking to give guidance on risk to Darfurians. In AE (Relocation-Darfur-Khartoum an option) Sudan CG [2005] UKAIT 00101, (promulgated on 3 May 2005), the Tribunal presided over by its President, reviewed the...

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