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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Buxton
Judgment Date04 April 2007
Neutral Citation[2007] EWCA Civ 297
Docket NumberCase No: C5/2006/2086/2103/2110
Date04 April 2007

[2007] EWCA Civ 297

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL

AS/02164/2005 et al

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Buxton

Lord Justice Moore-Bick and

Lord Justice Moses

Case No: C5/2006/2086/2103/2110

Between
AH(Sudan)
Appellants
IG(Sudan)
NM(Sudan)
and
The Secretary of State for the Home Department
Respondent

Mr Manjit Gill QC, Mr Abid Mahmood, Mr Christopher Jacobs and Mr Basharat Ali (instructed by Aman Solicitor Advocates, Blakemores and White Ryland) for the Appellants

Miss Lisa Giovannetti and Mr Robert Kellar (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent

Hearing dates: 20–21 March 2007

Lord Justice Buxton

This is the judgment of the court

Background

1

All three appellants are black Africans formerly living in Darfur in western Sudan. All three have been, or if they return to Darfur will be, victims of persecution by marauding Arab bands known as the Janjaweed, persecution which the government of Sudan has connived in or at the very least not restrained. It is not necessary to repeat further the now well-known facts about the desperate situation of black Africans in Darfur, because it is fully accepted that by reason of those conditions all of the appellants are prima facie entitled to international protection. The Secretary of State's case is, however, that they can safely return to Sudan provided that they return not to Darfur but to Khartoum. The appellants' case in that respect is two fold. First, that they will still be in danger of Refugee Convention persecution in whatever part of Sudan they are returned to. Second, that even if the appellants are not in danger of persecution if returned to Khartoum, it would be unduly harsh under the rules applying to internal relocation to require them to return there. The appellants failed before the AIT on all of these points.

2

The Secretary of State originally refused applications for asylum on various dates in December 2004 and January 2005. Since then, the appellants' cases have been considered not only by various adjudicators, but also by the Asylum and Immigration Tribunal; by the Administrative Court; by this court, [2005] EWCA Civ 1219; and once by the House of Lords, in Januzi and others v Secretary of State for the Home Department [2006] 2 AC 426. The judicial apparatus of this country does not need to apologise for the length of that consideration, which has been dictated by the need for anxious scrutiny of the international obligations of the United Kingdom in the face of one of the most serious and extensive examples of racial persecution to have occurred in recent years.

3

We deal first with the various claims made in respect of danger of persecution on return, and explain why we consider that the AIT was justified in rejecting that part of the appellants' case. We then deal with the issue of internal relocation. In that respect we consider that the AIT misstated the law, so as to reach a conclusion that on the facts was not justified as a matter of law. In that respect we allow the appeals, and applying the law as stated by this court and the House of Lords to the facts as found by the AIT quash the Secretary of State's refusals of asylum in all three of the cases before us.

Risk on Return

Risk to persons of non-Arab Darfuri origin

4

The appellants contended that as non-Arab Darfuris, if they returned involuntarily in consequence of their failed applications for refugee status, they would be at risk of persecution. The AIT concluded that there was no such risk. The appellants challenge that conclusion on the grounds that it is perverse and stems from an incorrect approach to expert evidence when measured against other objective material.

5

There was no shortage of material to suggest a real risk of ill-treatment to non-Arab Darfuris who had been returned as failed asylum-seekers. The appellants' starting point was the undisputed attitude of the Government of Sudan to non-Arab Darfuris, as demonstrated by their persecution of such people in Darfur. Such behaviour made it all the more likely that they would ill treat returned asylum seekers from Darfur. The Government's conduct had led to allegations of war crimes, crimes against humanity and genocide. Further, the risk of persecution on return was exacerbated by the Government's fears that returnees would provide evidence of such international crimes.

6

The United Nations Secretary-General's March 2006 monthly report said (as cited by the COIS April 2006 report):—

“Millions living close to rebel territory and who share the same ethnicity of the rebels are particularly vulnerable to human rights violations by the Sudanese armed forces.”

H and M are from the Zaghawa tribe which has been particularly targeted. G is from the Black African Moslem Al Berget tribe. The AIT accepted that all three appellants came from an ethnic background which would make them susceptible to ethnic persecution in Darfur.

7

The material on which the appellants relied to establish a risk of ill-treatment on return, apart from that background, rested on the reports of Peter Verney and Sarah Maguire. We leave out of account the evidence of a third expert, Mr Nourain. The Tribunal took the view that his evidence was “substantially unreliable”. There is no appeal in relation to his evidence. Both Mr Verney and Sarah Maguire, whose evidence was set out at substantial length towards the beginning of the AIT's decision, spoke of the risk of ill-treatment to returning asylum-seekers, amplifying the written reports they had proffered. The Tribunal rejected both the evidence of Mr Verney and Sarah Maguire in part on the basis that neither had taken into account the 10th ACCORD Country of Origin Seminar Report (Budapest December 2005) which recorded the opinions of Dr Schodder and Dr Alizadeh. Those two experts had made no specific reference to risk of ill-treatment on the return of non-Arab Darfuris. But they took the view that there was no risk of ill-treatment to failed asylum-seekers, generally, as long as they were not recognised as a threat to the state. Dr Schodder accepted that those returning could be arrested, questioned and detained but, provided they did not engage in political activities, he did not identify any risk.

8

The AIT placed considerable reliance upon the ACCORD report. It described the contrast between the evidence of Dr Alizadeh and Dr Schodder, as contained in the ACCORD report, and the evidence of Mr Verney and Sarah Maguire, as striking. Although the AIT acknowledged that the report had not specifically dealt with returnees of Darfuri origin, it concluded:—

“There is simply no reason to suppose that somehow they omitted persons of Darfuri origin from consideration.”

It described the evidence of Drs Alizadeh and Schodder as weighty and said there was no reason to adopt a different view (see paragraph 208).

9

The AIT's reliance upon the ACCORD report in support of the conclusion that there is no real risk on return to those of Darfuri origin led to a last-minute application to adduce evidence of a fuller version of the ACCORD report than that which was placed before the AIT. Contrary to the supposition of the AIT, the authors of the report on the Seminar recorded Dr Alizadeh as recommending a paper issued by UNHCR on Darfur and Internal Flight Alternative. He asked that that paper should be read when it was officially issued. That suggests, contrary to the supposition of the AIT, that Drs. Alizadeh and Schodder were not intending to include returnees from Darfur in their general description of risk. The respondent objects to the production of this passage so soon before the hearing of this appeal, when the appellants were given ample opportunity to adduce fresh evidence months ago. This is not the occasion to determine the consequences of this late application. It is sufficient to note that since the AIT considered the UNHCR paper, the very paper to which Dr Alizadeh referred, there is little profit to be gained by focussing upon the AIT's understandable, if erroneous, supposition.

10

We should emphasise, at this stage, that the ACCORD report was by no means the only basis which led the AIT to reject Mr Verney and Miss Maguire's evidence about risk to returnees. Mr Verney's evidence was criticised on two bases, independently of the ACCORD report. Firstly, although he relied upon the profiles of “twenty-six genocide survivors” he did so uncritically. No evidence, either in the form of written statements or of oral evidence, was adduced from any of the twenty-six persons to whom he made reference, (see AIT paragraph 163). Secondly, he exaggerated his evidence as to crimes against humanity carried out against Darfuris outside the Darfur region (see paragraph 164). The AIT was entitled to reach that conclusion about his evidence.

11

Similarly, the AIT's criticism of Miss Maguire's evidence did not rest solely on her failure to consider the ACCORD report. She too was found to have a tendency to exaggerate.

12

The AIT's criticism of opinions relating to risk to returnees does not stop at the expert evidence advanced on behalf of the appellants. As we have noted, the fuller version of the December 2005 ACCORD Seminar Report referred to the UNHCR Position Paper on Sudanese asylum-seekers from Darfur dated 10 February 2006. That paper described the risk to certain categories of Sudanese who had been forced to return to return to Sudan, regardless of their place of origin, “including Darfurians”. The UNHCR's Position Paper in relation to conditions in and...

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