OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Januzi (FC) (Appellant) v. Secretary of State for the Home Department and Others
12. Canadian authority reveals a somewhat different approach. In Thirunavukkarasu v Minister of Employment and Immigration, above, Professor Hathaway's observations already quoted were cited and described as helpful, but were held not quite to achieve "the appropriate balance between the purposes of international protection for refugees and the availability of an internal [relocation] alternative": p 687. In a passage of Linden JA's judgment which has been much quoted (as, briefly, by the Court of Appeal in Robinson), it was held at pp 687-688, using the expression "IFA" to mean what I have called the "relocation alternative":
In Ranganathan v Canada (Minister of Citizenship and Immigration)  2 FC 164, the Federal Court of Appeal (per Létourneau JA, with the assent of his colleagues) said, with reference to Thirunavukkarasu:
13. In England and Wales, the Court of Appeal in E and another v Secretary of State for the Home Department  EWCA 1032,  QB 531 declined to adopt what may, without disrespect, be called the Hathaway/New Zealand rule. It was argued for the appellants in that case (see para 16 of the judgment of the court given by Lord Phillips of Worth Matravers MR) that
In paragraphs 23-24 of its judgment the court said
The court cited Professor Hathaway's observations quoted above, and also a passage in Professor Goodwin-Gill's work on The Refugee in International Law, 2nd ed (1996), p 74, and continued in paragraph 38:
The court considered the leading authorities in Canada, New Zealand and this country (including Robinson, which it declined to follow on somewhat questionable grounds: para 66), but was not persuaded to a different view. It concluded, in paragraph 67:
14. The Court of Appeal's approach in E does not reflect, but nor does it contradict, a consensus of expert international opinion. The Michigan Guidelines treat the condition of compliance with widely recognised international human rights in the place of relocation as one for which "Good reasons may be advanced": Hathaway, "International Refugee Law: The Michigan Guidelines on the Internal Protection Alternative", 1999, para 21. In a paper prepared in 2001 for the San Remo roundtable, Hathaway and Foster ("Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination", p 43) point out that "The minimum acceptable level of legal rights inherent in the notion of 'protection' is certainly open to debate". The contributors to Refugee Protection in International Law, ed Feller, Türk and Nicholson, (2003) acknowledge that there are differing approaches to this matter: see, for example, pp 23-28, 405-411.
15. There are, in my opinion, a number of reasons why the broad approach of the Court of Appeal in E must be preferred to the Hathaway/New Zealand rule. First, there is nothing in any article of the Convention from which that rule may by any process of interpretation be derived. The Convention is addressed to the rights in the country of asylum of those recognised as refugees. It is not explicitly directed to defining the rights in the country of their nationality of claimants for asylum who may be able to relocate within that country in a place where they will have no well-founded fear of persecution.
16. Secondly, acceptance of that rule cannot properly be implied into the Convention. It is of course true, as the appellants emphasise, that the preamble to the Convention invokes the Charter of the United Nations and the Universal Declaration of Human Rights, and seeks to assure refugees the widest possible exercise of the fundamental rights and freedoms affirmed in those documents. But the thrust of the Convention is to ensure the fair and equal treatment of refugees in countries of asylum, so as to provide effective protection against persecution for Convention reasons. It was not directed (persecution apart) to the level of rights prevailing in the country of nationality. The article on refugees in the Universal Declaration was authoritatively criticised in 1948 as "artificial to the point of flippancy" (see Roma Rights case, above, para 14), and influential though the Declaration has been it lacked any means of enforcement. The International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966, compendiously referred to as "the International Bill of Rights", are in truth not such, and had yet to be adopted when the Convention was made.
17. Thirdly, this rule is not expressed in Council Directive 2004/83/EC of 29 April 2004 (OJ L 304.12) on "minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted". This is an important instrument, because it is binding on member states of the European Union who could not, consistently with their obligations under the Convention, have bound themselves to observe a standard lower than it required. Article 8 provides in paragraphs 1 and 2:
This imposes a standard significantly lower than the rule would require.
18. Fourthly, as appears from the sources cited above, the rule is not, currently, supported by such uniformity of international practice based on legal obligation and such consensus of professional and academic opinion as would be necessary to establish a rule of customary international law: Roma Rights case, above, para 23.
19. Fifthly, adoption of the rule would give the Convention an effect which is not only unintended but also anomalous in its consequences. Suppose a person is subject to persecution for Convention reasons in the country of his nationality. It is a poor country. Standards of social provision are low. There is a high level of deprivation and want. Respect for human rights is scant. He escapes to a rich country where, if recognised as a refugee, he would enjoy all the rights guaranteed to refugees in that country. He could, with no fear of persecution, live elsewhere in his country of nationality, but would there suffer all the drawbacks of living in a poor and backward country. It would be strange if the accident of persecution were to entitle him to escape, not only from that persecution, but from the deprivation to which his home country is subject. It would, of course, be different if the lack of respect for human rights posed threats to his life or exposed him to the risk of inhuman or degrading treatment or punishment.
20. I would accordingly reject the appellants' challenge to the authority of E and dismiss all four appeals so far as they rest on that ground. It is, however, important, given the immense significance of the decisions they have to make, that decision-makers should have some guidance on the approach to reasonableness and undue harshness in this context. Valuable guidance is found in the UNHCR Guidelines on International Protection of 23 July 2003. In paragraph 7 II(a) the reasonableness analysis is approached by asking "Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?" and the comment is made: "If not, it would not be reasonable to expect the person to move there". In development of this analysis the guidelines address respect for human rights in paragraph 28:
They then address economic survival in paragraphs 29-30:
These guidelines are, I think, helpful, concentrating attention as they do on the standards prevailing generally in the country of nationality. Helpful also is a passage on socio-economic factors in Storey, op cit, p 516 (footnotes omitted):
21. In arguing, on behalf of Messrs Hamid, Gaafar and Mohammed, that internal relocation is never an available option where persecution is by the authorities of the country of nationality, Mr Gill QC gains support from the conclusions of the San Remo experts in 2001. They considered that where the risk of being persecuted emanates from the State (including the national government and its agents) internal relocation "is not normally a relevant consideration as it can be presumed that the State is entitled to act throughout the country of origin". The UNHCR Guidelines of July 2003 similarly observe (para 7 I(b)):
There can, however, be no absolute rule and it is, in my opinion, preferable to avoid the language of presumption. 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. The source of the persecution giving rise to the claimant's well-founded fear in his place of ordinary domicile may be agents of the state authorised or directed by the state to persecute; or they may be agents of the state whose persecution is connived at or tolerated by the state, or not restrained by the state; or the persecution may be by those who are not agents of the state, but whom the state does not or cannot control. These sources of persecution may, of course, overlap, and it may on the facts be hard to identify the source of the persecution complained of or feared. There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department  EWCA Civ 74  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. The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state. The converse may also be true. All must depend on a fair assessment of the relevant facts.
22. Applying the principles outlined in this opinion, and for reasons more fully given by Lord Hope, I would dismiss Mr Januzi's appeal. I would allow the appeals of Messrs Hamid, Gaafar and Mohammed, and remit their cases to the Asylum and Immigration Tribunal. I would invite written submissions on the costs of these proceedings within 14 days.
LORD NICHOLLS OF BIRKENHEAD
23. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, with which I fully agree, I too would make the order he proposes.
LORD HOPE OF CRAIGHEAD
24. The question in these appeals arises under article 1A(2) of the 1951 Geneva Convention Relating to the Status of Refugees as amended by the 1967 Protocol ("the Refugee Convention"). It relates to the approach that is to be taken to the claim to refugee status by an applicant who has a well-founded fear of persecution for a Convention reason in one part of the country to which it is proposed to return him and there is another part of the country ("the place of relocation", as my noble and learned friend Lord Bingham of Cornhill has described it) where there is no such well-founded fear. The question in each case is whether it is unreasonable, in the sense that it would be unduly harsh, for the applicant to be expected to relocate internally within that country. That in its turn raises the question as to the tests that are to be applied in order to determine whether in the appellants' cases that alternative is available.
25. The appellant Mr Januzi is an ethnic Albanian from Kosovo. The appellants Messrs Hamid, Gaafa and Mohammed are all black Africans from the Darfur region in Sudan. One issue is common to all these appeals, as Lord Bingham has explained. This is whether the quality of life in the place of relocation must meet the basic norms of civil, political and socio-economic rights before relocation there can be said to be reasonable. The appeals of Messrs Hamid, Gaafar and Mohammed raise an additional question about the approach that is to be taken to this issue where the persecution of which the person has a well-founded fear for a Convention reason in the country of his nationality has been sanctioned or connived in by the State or by its agents.
26. During the course of the hearing before your Lordships the Secretary of State indicated that he was willing to agree to the cases of Mr Hamid and Mr Gaafar being remitted to the Asylum and Immigration Tribunal on the ground that the determinations in these cases were inadequately reasoned. He did not agree to Mr Mohammed's case being remitted, and the facts in the cases of Mr Hamid and Mr Gaafar form part of the broader picture in the light of which the questions of law raised by all these cases must be considered. So I shall give a brief account of the facts of each of them before dealing with the points of law which they have raised.
Mr Januzi's case
27. Gzim Januzi is an ethnic Albanian from the Kosovo province of the Federal Republic of Yugoslavia. He was born in the village of Mazhiq, near Mitrovica, on 6 May 1977. This is an area of Kosovo in which persons of Albanian extraction are in the minority. He is the eldest of five children. His family had land and livestock, from which they earned a livelihood. In the late 1980s and throughout the 1990s the Serbian government in Belgrade instituted a systematic policy of Serb domination of Serbia and Montenegro and Serbianisation of the ethnic Albanian enclave of Kosovo. In Gashi and Nikshiqi v Secretary of State for the Home Department  INLR 96 the Immigration Appeal Tribunal held that there was in place within the Federal Republic of Yugoslavia a policy of ethnic cleansing against Albanians by Serbs. For a period from July 1996 it was accepted by the Secretary of State that asylum seekers who were accepted as being ethnic Albanians from that country were entitled to refugee status. In March 1999 international peace-keeping forces intervened in Kosovo. By June of that year the province had been brought under control. Thereafter large numbers of ethnic Albanian refugees returned to Kosovo.