MM (Zaghawa – Risk on Return – internal Flight)
| Jurisdiction | England & Wales |
| Judge | Miss K Eshun,Vice President |
| Judgment Date | 09 March 2005 |
| Neutral Citation | [2005] UKIAT 69 |
| Court | Immigration Appeals Tribunal |
| Date | 09 March 2005 |
[2005] UKIAT 69
IMMIGRATION APPEAL TRIBUNAL
Miss K Eshun (Vice President)
Ms D K Gill (Vice President)
Mr H G Jones MBE, JP
For the Appellant: Ms A Weston, of Counsel, instructed by David Gray & Co
For the Respondent: Mr C Trent, Home Office Presenting Officer.
MM (ZaghawaRisk on Returninternal Flight) Sudan
The appellant, a citizen of Sudan, born on 1 October 1986, appeals with leave of the Tribunal against the determination of an Adjudicator (Mrs N A Baird) dismissing his appeal against the decision of the respondent made on 10 October 2003 to refuse him asylum and to give directions for his removal from the United Kingdom as an illegal entrant.
The appellant's evidence is that he was from the Zaghawa tribe. He worked as a shepherd in Sudan. About a year and a half before he came to the UK his uncle and paternal grandmother were killed by the Sudanese government. In around December 2002, he returned home from the market and found two people from the Arab tribes there. They beat him up with a leather strap and with a metal tipped arrow. They tied his hands together and forced him on to the back of a horse. He was taken to a place in the desert where he was told that he had to take care of their animals. He was not allowed to live in a tent but had to live with the animals. Sometimes he got food and he drank milk from the sheep. He was called a slave. He was kept by these people for seven or eight months. One day during a three day celebration of a wedding he managed to escape. He arrived at Karnoi where his home was but he did not go there as he could see that the whole of his village had been destroyed. He knew that his father had money on the land in a hole so he went and got this money and ran to Port Sudan. He went by lorry and the journey took about five days. In Port Sudan he met an agent who said he would help him. He gave the money to this man who assisted him to come to the United Kingdom. He feared to return to Sudan because of the Arab tribes.
The Secretary of State disputed that the appellant was sixteen years old when he was interviewed. The Secretary of State did however accept that the appellant may be a Sudanese citizen and that members of minority clans in Sudan may receive treatment from Arab clans which would bring them within the scope of the 1951 Convention. He did not accept that the appellant was forced into slavery or that he or his family was persecuted.
At the hearing, the Adjudicator had a medical report dated 18 February 2004 by Dr Wohlrab, the appellant's General Practitioner. At the time of Dr Wohlrab's report the appellant was admitted to Cherry Knowle Hospital on 16 February 2004 and was being treated with medication for depression. He was being seen by a child and adolescent psychiatrist. There was a further letter from Dr Wohlrab dated 22 March 2004 saying that he saw the appellant on 22 March and found him to be still suffering significantly from post-traumatic stress disorder. The appellant had told Dr Wohlrab that he had stopped taking the medication prescribed by the psychiatrist. Dr Wohlrab decided to prescribe vitamins and food supplements. Dr Wohlrab said in a previous letter that he was inclined to believe that the appellant had given his correct age.
The Adjudicator also had a letter dated 11 March 2004 from the city of Sunderland Social Services Department confirming the appellant to be visiting Gill Horne, a social worker on a regular basis. The Adjudicator also had a further report dated 9 December 2003 from a consultant clinical psychologist who said that the appellant was having difficulty sleeping. He exhibited an elevated level of anxiety but not depression. She said that there was evidence of post-traumatic stress disorder too. She had organised for the appellant to see a consultant adolescent psychiatrist with a view to considering some anti-depressant medication.
The Adjudicator also had before her an expert report prepared by Peter Verne in November 2003. This report was specific to the appellant. Peter Verney claimed to be personally familiar with the Darfur region of Sudan and its people, having worked in the region for Save the Children in 1985 and 1986. He has maintained his interest in the area and done a lot of work in research.
The Adjudicator heard oral evidence from the appellant and from Gill Horne, the Social Worker.
The Adjudicator accepted that the appellant was only 17 and accepted his date of birth as 1 October 1986. She accepted that he was abducted as he claimed. She also accepted that he was able to escape and that he went home but lost touch with his parents. She did think, however, that there was an element of planning to leave rather than find his family and make the best of things in Sudan. She also accepted that he is of the Zaghawa tribe and that this tribe have had problems and suffer harassment and discrimination. She also accepted that many people from the appellant's clan had fled their home areas and are now displaced and that the expert report by Peter Verney was an accurate reflection of the situation.
The Adjudicator did not accept that the appellant was persecuted in the past. She did not accept that he would be at any more risk than the rest of his clan. Although they are clearly harassed and discriminated against, she did not accept that they are persecuted. She therefore did not accept that there is a reasonable likelihood that the appellant would be persecuted if he were returned to Sudan. If he did not feel safe in his home area he could relocate.
With reference to the medical evidence, she accepted that the appellant has had psychological problems but noted that he was not currently on medication because he stopped taking it because of stomach problems. According to the CIPU report access to mental health care in the primary care system is not available in Sudan and very few therapeutic drugs are obtainable. However, there are special programmes designed to meet the mental needs of refugees and children, supported by NGO's and UNICEF. Although she accepted that the appellant was exhibiting some symptoms of PTSD, she thought that if it were really bad he would be getting medication and counselling. The Adjudicator was not persuaded that his condition was so bad that he would not be able to get proper treatment in Sudan. She did not think that the appellant's circumstances were exceptional. Having accepted that the appellant was only seventeen years of age, the Adjudicator hoped that he would be granted leave to remain in the UK until he attained the age of eighteen.
The grounds of appeal upon which leave was granted argued that the Adjudicator was wrong to find that the Zaghawa Tribe are not persecuted and was also wrong to maintain that the appellant was not subjected to persecution in Sudan. It was also argued that given that the Adjudicator found the appellant credible, the weight of the objective evidence clearly supports the proposition that he is reasonably likely to be at risk of persecution as a result of his ethnicity were he to be returned to Sudan.
Counsel argued that the flaw in the Adjudicator's determination was in her finding that the appellant was not persecuted in the past. She argued that no reasonable Adjudicator could reasonably say that what the appellant suffered in the past was not persecution. Counsel said that the appellant was a minor, who was kidnapped by the Arab tribes and used as a slave. The Adjudicator accepted that he is from the Zaghawa Tribe and suffered harassment and discrimination. The treatment, which the Adjudicator accepted the appellant suffered included enslavement by the Arab group and beaten regularly. That treatment was because he was a member of the Zaghawa Tribe. The Adjudicator accepted Peter Verney's report was accurate and accepted that it was consistent with what was going on in Darfur. In the light of that evidence, counsel argued that the Adjudicator was not entitled to find that the appellant was not persecuted in the past.
Mr Trent on the other hand argued that the Adjudicator looked at the situation and distinguished between discrimination, harassment and persecution. She accepted the cumulative effect of discrimination and harassment, amounted to persecution. However, her finding that the appellant was not persecuted in the past was a finding that was open to her in the light of the evidence that was before her.
After deliberating on the matter, the Tribunal decided that the Adjudicator made an error in law. We found that the treatment the appellant was subjected to in the past was enough to amount to persecution.
Counsel then argued that two issues arose in this case, firstly, the prospective risk the appellant is likely to face in the future and, secondly, whether it would be unduly harsh for him to relocate to another part of Sudan outside of Darfur.
Counsel relied on the report by Peter Verney and two letters from the UNHCR dated 18 May 2004 and 4 November 2004, both of which postdate the Adjudicator's determination.
Referring to the UNHCR letter of 18 May 2004, Counsel said that on return to Sudan the appellant would be at risk of being questioned particularly about his clan membership and where he comes from because of the government's plan for people in those regions. She said that there is hardship and lack of security in the camps. UNHCR in Khartoum is aware of some individuals who have been subjected to detention without trial on their return to Sudan. The length of detention is uncertain and international agencies, including the ICRC, do not have access to the detainees. Southern Sudanese are almost certain to face extreme hardship upon their return. They may be placed in camps...
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