R (AH and Others (Sudan)) v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date14 Nov 2007
Neutral Citation[2007] UKHL 49

[2007] UKHL 49

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Hoffmann

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Secretary of State for the Home Department
(Appellant)
and
AH (Sudan)

and others (FC)

(Respondents)

Appellants:

Rabinder Singh QC

Lisa Giovannetti

Robert Kellar

(Instructed by Treasury Solicitors)

Respondents:

AH: Manjit Gill QC

Abid Mahmood

(Instructed by Blakemores)

NM: Manjit Gill QC

Chris Jacobs

(Instructed by White Ryland)

IG: Manjit Gill QC

Basharat Ali

(Instructed by Aman Solicitors)

Intervener

UNHCR: Tim Eicke

(Instructed by Baker and McKenzie)

LORD BINGHAM OF CORNHILL

My Lords,

1

The three respondents, all of them men in their 30s, are Sudanese nationals. They are members of black African tribes, and formerly lived in Darfur. AH and IG worked as subsistence farmers. NM may have been employed in a business with his father. All three suffered severe persecution in Darfur at the hands of militias acting with government support or connivance. They fled from Darfur, in NM's case after a six-month sojourn in Khartoum, arrived in this country and claimed asylum as refugees on dates in October - December 2004. In each case asylum was refused by the Secretary of State, whose refusal was upheld on appeal to an adjudicator or immigration judge. The respondents sought to challenge these refusals under section 103A of the Nationality, Immigration and Asylum Act 2002, and their cases were referred to the Court of Appeal under section 103C of that Act. The Court of Appeal dismissed the appeals on 25 October 2005 ( [2005] EWCA Civ 1219) and the respondents appealed to the House. Here the appeals were heard together with that of an Albanian Kosovar, whose case raised the same issues. He was the lead appellant and gave his name to the resulting judgment: Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426. Januzi's appeal was dismissed. With the agreement of the Secretary of State in the cases of AH and IG, the cases of all three of the respondents to the present appeal were referred to the Asylum and Immigration Tribunal ("the AIT") for further reconsideration. The AIT re-considered the cases in June 2006 and on 3 August 2006 promulgated a very lengthy judgment dismissing the appeals and thus upholding the Secretary of State's refusal of asylum as refugees: [2006] UKAIT 00062. The respondents again appealed to the Court of Appeal, and on this occasion succeeded, in the decision now under appeal: [2007] EWCA Civ 297. The appeals were allowed, the decision of the AIT set aside and the refusals of asylum quashed.

2

It has been accepted throughout that the respondents have a well-founded fear of persecution in Darfur. The issues below were whether, if returned to Khartoum, the respondents would be at risk of persecution there and, if not, whether it would for other reasons be unreasonable or unduly harsh for the respondents to be returned to and relocated in Khartoum. The AIT concluded that the respondents would not be at risk of persecution in Khartoum if returned there. The Court of Appeal did not disturb this finding, and it has not been challenged in the House. The AIT also found that it would not be unreasonable or unduly harsh for the respondents to be returned to and relocated in Khartoum. It is this finding which the Court of Appeal rejected. It held that the AIT had misdirected itself by applying the wrong legal test to internal relocation, that it was therefore open to the Court of Appeal, applying the right test, to form its own judgment and, doing so, that it would be unreasonable or unduly harsh for the respondents to be returned to and relocated in Khartoum. The Secretary of State now contends that the AIT did not apply the wrong legal test and that the Court of Appeal was not entitled to disturb its judgment on the facts. I would acknowledge the help given by the United Nations High Commissioner for Refugees in resolving this appeal.

Januzi v Secretary of State for the Home Department

3

The decision of the House in Januzi [2006] 2 AC 426 was also directed to the problem of internal relocation of claimants for asylum who had a well-founded fear of persecution in one part of their home state but who, it was said, could reasonably and without undue harshness be returned to and relocated in another part of that state. The common issue in the appeals (see para 1) was whether, in judging reasonableness and undue harshness in this context, account should be taken of any disparity between the civil, political and socio-economic rights which a claimant would enjoy under the leading international human rights conventions and covenants and those which he would enjoy at the place of relocation. The clear conclusion of the House was that, excepting breaches of fundamental rights such as are protected by articles 2 and 3 of the European Convention on Human Rights, it should not: paras 20, 23, 45-46, 61, 67, 70.

4

In reaching that conclusion the House took as its starting-point the definition of "refugee" in article 1A(2) of the 1951 United Nations Convention relating to the Status of Refugees, as amended by the 1967 Protocol, the terms of which it recited. It referred to a body of materials including the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979), para 91; rule 343 of the Statement of Changes in Immigration Rules (1994) (HC 395); Council Directive 2004/83/EC of 29 April 2004 (OJ 2004 L 304.12); and UNHCR Guidelines on International Protection of 23 July 2003, paras 7 II(a), 28 and 29-30. It also referred to a body of judicial authority which included Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706, 711; Thirunavukkarasu v Canada (Minister of Employment and Immigration) (1993) 109 DLR (4th) 682; R v Secretary of State for the Home Department, Ex p Robinson [1998] QB 929, 939-940; Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, 470; Ranganathan v Canada (Minister of Citizenship and Immigration) [2001] 2 FC 164; and E v Secretary of State for the Home Department [2003] EWCA Civ 1032, [2004] QB 531. Reference was further made to G S Goodwin-Gill, The Refugee in International Law, 2nd ed (1996), p 74 and H Storey, "The Internal Flight Alternative Test: The Jurisprudence Re-examined", (1998) 10 International Journal of Refugee Law, 499, 529. In the present appeal the parties, naturally enough, rely on very much the same materials. I would refer to what was said by my noble and learned friends and myself in Januzi, but need not repeat it or refine it since it is not understood to be suggested that our understanding and exposition of these materials was defective.

5

In paragraph 21 of my opinion in Januzi I summarised the correct approach to the problem of internal relocation in terms with which all my noble and learned friends agreed:

"The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so … There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department, [2002] 1 WLR 1891, para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls. …All must depend on a fair assessment of the relevant facts."

Although specifically directed to a secondary issue in the case, these observations are plainly of general application. It is not easy to see how the rule could be more simply or clearly expressed. It is, or should be, evident that the enquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant. There is no warrant for excluding, or giving priority to, consideration of the applicant's way of life in the place of persecution. There is no warrant for excluding, or giving priority to, consideration of conditions generally prevailing in the home country. I do not underestimate the difficulty of making decisions in some cases. But the difficulty lies in applying the test, not in expressing it. The humanitarian object of the Refugee Convention is to secure a reasonable measure of protection for those with a well-founded fear of persecution in their home country or some part of it; it is not to procure a general levelling-up of living standards around the world, desirable though of course that is.

The decision of the AIT

6

The judgment of the AIT does not lend itself to succinct summary. The facts relating to the three individual respondents (then appellants), also summarised by my noble and learned friend Lord Hope of Craighead in Januzi, paras 35-43, were set out. The evidence and other materials before the Tribunal were summarised in some detail (paras 14-137) and later evaluated (paras 161-170). The opinions of the House in Januzi were cited (paras 144-145) and the Tribunal continued:

"146. From the opinions of their Lordships in Januzi we extract several propositions of particular importance in deciding the issues before us in this case.

147. First, it is essential when considering internal relocation to have regard to both considerations of: (1) safety, in the sense of an absence of persecution; and (2) reasonableness, in the sense of whether conditions are unduly harsh (Januzi, paragraphs 7, 8, 47 and 48).

148. Secondly, whilst it may be relevant to deciding a particular case to have regard to whether a person...

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