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OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Januzi (FC) (Appellant) v. Secretary of State for the Home Department and Others
LORD BINGHAM OF CORNHILL
1. In each of the four appeals before the House the appellant is a foreign national who suffered or would suffer persecution for Convention reasons at the place where he lived in the country of his nationality. Each appellant came to the United Kingdom and here claimed asylum as a refugee. In each case recognition as a refugee has been denied on the ground that there is another place ("the place of relocation"), within the country of the appellant's nationality, where he would have no well-founded fear of persecution, where the protection of that country would be available to him and where, in all the circumstances, he could reasonably and without undue harshness be expected to live. The common issue in the appeals is whether, in judging reasonableness and undue harshness in this context, account should be taken of any disparity between the civil, political and socio-economic human rights which the appellant would enjoy under the leading international human rights conventions and covenants and those which he would enjoy at the place of relocation. In the appeals of Messrs Hamid, Gaafar and Mohammed a further issue arises, on the approach to be followed where the persecution suffered or to be suffered was or would be sanctioned or connived at by the authorities of the country of the appellants' nationality. The answer to those questions must be found in the 1951 United Nations Convention relating to the Status of Refugees, as amended by the 1967 Protocol, and in such exegesis of the Convention as commands clear international acceptance.
2. I am indebted to my noble and learned friend Lord Hope of Craighead, whose comprehensive summary of the facts of the four cases enables me to be very brief on that aspect. Mr Januzi, an Albanian Kosovar, was the victim of ethnic cleansing at Serb hands at his home in Mitrovica in Kosovo. He fled to this country and claimed asylum. This claim was refused on the ground that he could reasonably be expected to relocate to Pristina. He claims, largely for medical reasons associated with his experience of persecution, that it would be unduly harsh to expect him to do so. Messrs Hamid, Gaafar and Mohammed were black Africans living in Darfur in western Sudan. Hamid and Gaafar were the victims of persecution by marauding Arab bands, which the Government encouraged or connived at and did not restrain. Mohammed, it has been found, would suffer such persecution were he to return to Darfur, whence (like Hamid and Gaafar) he fled. They all claimed asylum on arriving here. In each case, recognition as a refugee has been denied on the ground that the appellant could reasonably (and without undue harshness) be expected to relocate to Khartoum. They all fear that they might be the victims of adverse discriminatory treatment, even persecution, in Khartoum, and they contend that relocation there would be unreasonable and unduly harsh.
3. As in so many other cases the crux of the argument is found in the amended definition of a "refugee" in article 1A(2) of the Refugee Convention as any person who
The closing words of the definition, applicable to stateless persons, have no immediate application to the appellants, all of whom have a nationality. In each of their cases the relevant persecution is for reasons of ethnicity, which is a reason falling within the Convention.
4. This definition must be read as a whole, in the context of the Convention as a whole, taking account of the Convention's historical setting and its objects and purposes, to be derived from its articles, and also from the recitals of its preamble which are quoted in extenso in R (European Roma Rights Centre and Others) v Immigration Officer at Prague Airport and Another (United Nations High Commissioner for Refugees intervening)  UKHL 55,  2 AC 1, para 6. The Convention must be interpreted as an international instrument, not a domestic statute, in accordance with the rules prescribed in the Vienna Convention on the Law of Treaties. As a human rights instrument the Convention should not be given a narrow or restricted interpretation. Nonetheless, the starting point of the construction exercise must be the text of the Convention itself (Adan v Secretary of State for the Home Department  1 AC 293, 305; Roma Rights case, above, para 18), because it expresses what the parties to it have agreed. The parties to an international convention are not to be treated as having agreed something they did not agree, unless it is clear by necessary implication from the text or from uniform acceptance by states that they would have agreed or have subsequently done so. The court has "no warrant to give effect to what [states parties] might, or in an ideal world would, have agreed": Roma Rights case, above, para 18.
5. The definition of "refugee" quoted above, as it applies to nationals, has three qualifying conditions. The first is, clearly in my opinion, a causative condition which governs all that follows: "owing to well-founded fear of being persecuted for reasons of race political opinion". The second, indispensable, condition, satisfied by all these appellants, is that the person should be "outside the country of his nationality". The third condition contains an alternative: the person must either be "unable to avail himself of the protection" of the country of his nationality, or he must be "unwilling", owing to fear of being persecuted for a Convention reason, "to avail himself of the protection" of the country of his nationality.
6. This definition must be read in the light of three familiar and uncontentious but fundamental principles. First, the power to admit, exclude and expel aliens was among the earliest and most widely recognised powers of the sovereign state: see Roma Rights case, paras 11-12. Secondly, a person has no right to live elsewhere than in his country of nationality, and has no right to claim asylum: ibid. Thirdly, a state has an obligation to protect its nationals within its borders against persecution. The Refugee Convention, the latest in a series of similar instruments, adopted at a time when many people had been driven by persecution to leave their home countries, accepted the need for some limited relaxation of these principles to recognise the plight of those fleeing from intolerable oppression. But like any international convention it was the product of negotiation and compromise: Adan v Secretary of State for the Home Department, above, p 305; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 247-248, 274; Rodriguez v United States (1987) 480 US 522, 525-526; Roma Rights case, above, para 15.
7. The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. Although described by a number of different names this relocation alternative has now been recognised for a number of years, at any rate since publication of paragraph 91 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees in 1979:
The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.
8. This reasonableness test of internal relocation was readily and widely accepted. It was applied by the Federal Court of Appeal in Canada in Rasaratnam v Canada (Minister of Employment and Immigration)  1 FC 706, 711 and again in Thirunavukkarasu v Canada (Minister of Employment and Immigration) (1993) 109 DLR (4th) 682. It has been applied in Australia and New Zealand (see paras 9-10 below). It is reflected in rule 343 of the Statement of Changes in Immigration Rules (1994) (HC 395), which provides:
The ground of refusal would be that the person is not, within the Convention definition, a refugee. It is not in contention between the parties that reasonableness is the test to be applied when deciding whether a relocation alternative is open to an applicant for asylum. But the parties are sharply divided on how the test should be applied, and in particular on whether a person can reasonably be expected to relocate when the level of civil, political and socio-economic human rights in the place of relocation is poor. The appellants submit that he cannot.
9. The appellants found their submission on a passage in Professor Hathaway's respected work The Law of Refugee Status (1991), p 134, where he speaks, as many authorities do, of "internal protection" to describe what I am calling "internal relocation":
This passage was quoted by Keith J for the New Zealand Court of Appeal in Butler v Attorney-General  NZAR 205, para 32, who went on to hold in para 50 that
In Refugee Appeal No 71684/99  INLR 165, the Refugee Status Appeals Authority of New Zealand, while acknowledging in para 57 "that no uniform and ascertainable standard of rights for refugees has emerged on which States parties to the Refugee Convention are agreed", carried the Court of Appeal's approach a further step. Having made reference to some of the rights which member states bind themselves to extend to those accepted as refugees, they continued in paras 60-61:
10. This New Zealand authority is perhaps the high water mark of the appellants' case. But they gain assistance from a similar line of authority in Australia. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 the Federal Court of Australia cited Professor Hathaway's observations quoted above with approval: see Black CJ, p 442; Beaumont J, pp 450 - 451. The passage was also cited by Moore J in the same court in Perampalam v Minister for Immigration & Multicultural Affairs  FCA 165; (1999) 84 FCR 274, 288. In Al-Amidi v Minister for Immigration & Multicultural Affairs  FCA 1081; (2000) 177 ALR 506, 510, it was stressed, citing Professor Hathaway, that "there must be satisfaction of the basic norms of civil, political and socio-economic human rights in that relocation".
11. The appellants place particular reliance on a passage in the judgment of the Court of Appeal of England and Wales in R v Secretary of State for the Home Department, Ex p Robinson  QB 929, 939-940, where the court said:
The court's approach to test (d) has not been found to be wholly clear (see H Storey, "The Internal Flight Alternative Test: The Jurisprudence Re-examined," (1998) 10 International Journal of Refugee Law, 499, 529), and when one of the authors of the Robinson judgment came to summarise its effect in Karanakaran v Secretary of State for the Home Department  3 All ER 449, 470 he made no reference to the level of civil, political and socio-economic human rights in the place of relocation. But on its face Robinson appears to lend support to the appellants' argument. Support is also derived from the conclusions of the expert roundtable organised by the UN High Commissioner for Refugees and the International Institute of Humanitarian Law in San Remo in September 2001: the level of respect for human rights in the proposed place of relocation was in their opinion relevant to an assessment of its availability.