Judgments - OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Januzi (FC) (Appellant) v. Secretary of State for the Home Department and Others

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    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":

    "Thus, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.

    Let me elaborate. It is not a question of whether in normal times the refugee claimant would, on balance, choose to move to a different, safer part of the country after balancing the pros and cons of such a move to see if it is reasonable. Nor is it a matter of whether the other, safer part of the country is more or less appealing to the claimant than a new country. Rather, the question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarity, the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?

    An IFA cannot be speculative or theoretical only, it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety. Similarly, claimants should not be compelled to hide out in an isolated region of their country, like a cave in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable in these latter cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee.

    In conclusion, it is not a matter of a claimant's convenience or the attractiveness of the IFA, but whether one should be expected to make do in that location, before travelling half-way around the world to seek a safe haven in another country. Thus, the objective standard of reasonableness which I have suggested for an IFA is the one that best conforms to the definition of 'Convention refugee'. That definition requires claimants to be unable or unwilling by reason of fear of persecution to claim the protection of their home country in any part of that country. The prerequisites of that definition can only be met if it is not reasonable for the claimant to seek and obtain safety from persecution elsewhere in the country."

In Ranganathan v Canada (Minister of Citizenship and Immigration) [2001] 2 FC 164, the Federal Court of Appeal (per Létourneau JA, with the assent of his colleagues) said, with reference to Thirunavukkarasu:

    "We read the decision of Linden JA for this Court as setting up a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.

    There are at least two reasons why it is important not to lower that threshold. First, as this Court said in Thirunavukkarasu, the definition of refugee under the Convention 'requires claimants to be unable or unwilling by reason of fear of persecution to claim the protection of their home country in any part of that country'. Put another way, what makes a person a refugee under the Convention is his fear of persecution by his home country in any part of that country. To expand and lower the standard for assessing reasonableness of the IFA is to fundamentally denature the definition of refugee: one becomes a refugee who has no fear of persecution and who would be better off in Canada physically, economically and emotionally than in a safe place in his own country.

    Second, it creates confusion by blurring the distinction between refugee claims and humanitarian and compassionate applications. These are two procedures governed by different objectives and considerations…"

    13.  In England and Wales, the Court of Appeal in E and another v Secretary of State for the Home Department [2003] EWCA 1032, [2004] 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

    "the 'unduly harsh' test is the means of determining whether an asylum seeker is 'unable to avail himself of the protection of' the country of his nationality. The protection in question is not simply protection against persecution. It is a level of protection that secures, for the person relocating, those benefits which member states have agreed to secure for refugees under articles 2 to 30 of the Refugee Convention."

In paragraphs 23-24 of its judgment the court said

    "23.  Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there. Living conditions in the safe haven may be attendant with dangers or vicissitudes which pose a threat which is as great or greater than the risk of persecution in the place of habitual residence. One cannot reasonably expect a city dweller to go to live in a desert in order to escape the risk of persecution. Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is 'outside the country of his nationality by reason of a well-founded fear of persecution'.

    24.  If this approach is adopted to the possibility of internal relocation, the nature of the test of whether an asylum seeker could reasonably have been expected to have moved to a safe haven is clear. It involves a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker. What the test will not involve is a comparison between the conditions prevailing in the safe haven and those prevailing in the country in which asylum is sought."

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:

    "38  We make the following observation on these passages. The failure to provide (as opposed to a discriminatory denial of) the 'basic norms of civil, political, and socio-economic human rights' does not constitute persecution under the Refugee Convention. An asylum seeker who has no well-founded fear of persecution but has left his home country because he does not there enjoy those rights, will not be entitled to refugee status. When considering whether it is reasonable for an asylum seeker to relocate in a safe haven, in the sole context of considering whether he enjoys refugee status, we cannot see how the fact that he will not there enjoy the basic norms of civil, political and socio-economic human rights will normally be relevant. If that is the position in the safe haven, it is likely to be the position throughout the country. In such circumstances it will be a neutral factor when considering whether it is reasonable for him to move from the place where persecution is feared to the safe haven. States may choose to permit to remain, rather than to send home, those whose countries do not afford these rights. If they do so, it seems to us that the reason should be recognised as humanity or, if it be the case, the obligations of the Human Rights Convention and not the obligations of the Refugee Convention."

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:

    "67.  It seems to us important that the consideration of immigration applications and appeals should distinguish clearly between (1) the right to refugee status under the Refugee Convention, (2) the right to remain by reason of rights under the Human Rights Convention and (3) considerations which may be relevant to the grant of leave to remain for humanitarian reasons. So far as the first is concerned, we consider that consideration of the reasonableness of internal relocation should focus on the consequences to the asylum seeker of settling in the place of relocation instead of his previous home. The comparison between the asylum seeker's situation in this country and what it will be in the place of relocation is not relevant for this purpose, though it may be very relevant when considering the impact of the Human Rights Convention or the requirements of humanity."

    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:

    "Internal protection

    1.  As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.

    2.  In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant."

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:

    "Respect for human rights

    Where respect for basic human rights standards, including in particular non-derogable rights, is clearly problematic, the proposed area cannot be considered a reasonable alternative. This does not mean that the deprivation of any civil, political or socio-economic human right in the proposed area will disqualify it from being an internal flight or relocation alternative. Rather, it requires, from a practical perspective, an assessment of whether the rights that will not be respected or protected are fundamental to the individual, such that the deprivation of those rights would be sufficiently harmful to render the area an unreasonable alternative."

They then address economic survival in paragraphs 29-30:

    "Economic survival

    The socio-economic conditions in the proposed area will be relevant in this part of the analysis. If the situation is such that the claimant will be unable to earn a living or to access accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned. If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level.

    If the person would be denied access to land, resources and protection in the proposed area because he or she does not belong to the dominant clan, tribe, ethnic, religious and/or cultural group, relocation there would not be reasonable. For example, in many parts of Africa, Asia and elsewhere, common ethnic, tribal, religious and/or cultural factors enable access to land, resources and protection. In such situations, it would not be reasonable to expect someone who does not belong to the dominant group, to take up residence there. A person should also not be required to relocate to areas, such as the slums of an urban area, where they would be required to live in conditions of severe hardship."

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):

    "Bearing in mind the frequency with which decision-makers suspect certain asylum seekers to be simply economic migrants, it is useful to examine the relevance to IFA claims of socio-economic factors. Again, terminology differs widely, but there seems to be broad agreement that if life for the individual claimant in an IFA would involve economic annihilation, utter destitution or existence below a bare subsistence level (Existenzminimum) or deny 'decent means of subsistence' that would be unreasonable. On the other end of the spectrum a simple lowering of living standards or worsening of economic status would not. What must be shown to be lacking is the real possibility to survive economically, given the particular circumstances of the individual concerned (language, knowledge, education, skills, previous stay or employment there, local ties, sex, civil status, age and life experience, family responsibilities, health; available or realisable assets, and so forth). Moreover, in the context of return, the possibility of avoidance of destitution by means of financial assistance from abroad, whether from relatives, friends or even governmental or non-governmental sources, cannot be excluded."

    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)):

    "National authorities are presumed to act throughout the country. If they are the feared persecutors, there is a presumption in principle that an internal flight or relocation alternative is not available."

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 [2002] EWCA Civ 74 [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. 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.

Disposal

    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

My Lords,

    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

My Lords,

    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 [1997] 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.

 
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