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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    28.  Mr Januzi's family, like most Albanian families in the area, experienced the severe effects of the ethnic cleansing policy. His father was a member of the Democratic League of Kosovo ("the LDK"), a political party seeking to advance the rights of the ethnic Albanian population in Kosovo. He himself was a supporter, but not a member, of that party and attended demonstrations in Pristina and Mitrovica. His father was imprisoned by the Serbian authorities for his activities in support of the LDK, and he himself was detained by them on three occasions during the 1990s. He claimed in his asylum statement that on each of these occasions he was ill-treated by the Serbian police when he was in their custody. He was sent abroad for safety during a period of intensive and increasing persecution in 1998 of the Albanian minority. He reached the United Kingdom and applied for asylum on his arrival here on 17 May 1998.

    29.  The Secretary of State accepted in his decision letter that Mr Januzi came from a majority Serb area of Kosovo and that, as an ethnic Albanian, he was at risk of being exposed to persecution there from which he would not be protected by the authorities. His position however was that Mr Januzi would not be at risk from Serbs in many other parts of the province, as 95% of the population of Kosovo was Albanian. About 90% of the ethnic Albanians who had fled Kosovo in 1998 and 1999 had already returned to the province voluntarily. His argument was that Mr Januzi would be safe if he went, for instance, to Pristina, which is about 35 km from his home town of Mitrovica and in an area of Kosovo where ethnic Albanians are in the majority. He said in his decision letter that he considered that, as Mr Januzi was a single man in good health, it would not be unduly harsh to expect him to relocate to one of the many municipalities where very few Serbs were present. Mr Januzi's appeal to the adjudicator was allowed. In the Secretary of State's appeal to the Immigration Appeal Tribunal ("the tribunal") Mr Januzi claimed that relocation would not be a reasonable alternative in his case and that he should be accorded refugee status in this country.

    30.  Mr Januzi's case before the tribunal, as it had been before the adjudicator, was based on a medical report prepared by Dr James Barrett, a consultant psychiatrist with West London Mental Health NHS Trust and an honorary clinical senior lecturer at the Imperial College of Science and Medicine. He described the effect on Mr Januzi's mental health were he to be returned to Kosovo. He had examined him in November 2001 at Charing Cross Hospital. In his opinion Mr Januzi was currently suffering from a moderate depressive episode with somatic symptoms for which he required treatment, the causes of which in his opinion were psychological. He said that returning to Kosovo would be a negative step, as he had had the symptoms for more than a year. They were liable to become chronic and to worsen by a return to the precipitating environment. In a supplementary report he said that there would be a strong risk of his developing more symptoms of depression which in due course would become severe, with a strong risk of death by self-neglect or suicide. In a letter which he wrote after the hearing he made it clear that these comments had been written on the assumption that Mr Januzi might be returned to anywhere in Kosovo, as he knew of no reason why Mitrovica should be particularly different from anywhere else in Kosovo.

    31.  The tribunal had before it a paper issued by the United Nations High Commissioner for Refugees (UNHCR) in March 2001 stating her position on the continued protection needs of individuals from Kosovo. In this paper it is stated that UNHCR considers that some vulnerable people may deserve exemption from forced return on humanitarian grounds (not, it should be noted, on the ground that this would be a breach of the Refugee Convention) until special and co-ordinated arrangements could be made to facilitate this. Among these groups are chronically ill persons whose condition requires specialised medical intervention of the type not yet available in Kosovo. Access to medical treatment by internally displaced persons is limited for anything beyond basic or emergency medical services by the fact that payment is required at the time of treatment. In a United Nations briefing note on the repatriation of Kosovar Albanians issued in April 2001 it was stated that psychiatric services in Kosovo are very limited. There is an almost total lack of community services, the ratio of psychiatrists is one for every 100,000 inhabitants, clinical psychologists are almost non-existent and few psychiatrists have been trained in psychotherapy. The province does not possess any facilities for treating either acute mental health cases or persons who need to be detained or forcibly medicated for mental health reasons.

    32.  On the other hand in a municipal profile of the municipality of Pristina prepared by the Organisation for Security and Co-operation in Europe's Mission in Kosovo (OSCE) in July 2000 it is stated that Pristina hosts the largest hospital in Kosovo which is currently under international management, and that the neuro-psychiatry department of the clinical centre of the University of Pristina has 144 employees. An assessment of the situation of ethnic minorities in Kosovo during the period from October 2000 to February 2001 which was prepared jointly by UNHCR and OSCE and issued in March 2001 refers to intensive efforts on the part of the international community to service the needs of Kosovo Albanians. It appears from this report that it is Kosovo Serbs who continue to experience the most acute problems in accessing health care at all levels.

    33.  On 12 July 2002 the tribunal issued their determination. In para 16 of the determination they said that, while it would be difficult for Mr Januzi to readjust to life in Kosovo, they were not satisfied that it would be unduly harsh for him to be returned to Pristina. They found that there were facilities available for treatment there which were adequate for him, and they were not satisfied on the evidence that his return to Kosovo would precipitate a deterioration in his condition. They took into account the fact that many thousands of Kosovans had returned and that GPs in the area would be familiar with dealing with problems of returnees who would have faced ill-treatment at the hands of the Serbs. They were not satisfied that he could not receive appropriate counselling or that adequate medication would not be available for him. Although he might be isolated in Pristina, there would be many individuals there in circumstances like his. The Secretary of State's appeal against the determination of the adjudicator was allowed.

    34.  On 24 July 2003 the Court of Appeal (Aldous, Buxton and May LJJ) held, in agreement with the tribunal, that there were no grounds for relief under the Refugee Convention: [2003] EWCA Civ 1188, para 30. But they remitted the case to the Tribunal for further consideration of the question whether Mr Januzi's rights under article 8 of the European Convention on Human Rights would be violated by his return to Kosovo.

The cases of Messrs Hamid, Gaafar and Mohammed

(a) Mr Hamid

    35.  Abdoulazaz Hamid is a citizen of Sudan. He was born on 1 July 1972. He seeks asylum on the ground that he has a well-founded fear for reasons of race. He claims that he is a member of the Zaghawa tribe from the village of Oro in west Darfur. He says that in November 2003 his village was attacked by the Janjaweed militia. His father and brother were killed in this attack. He and his mother went to stay with his uncle in the village of Taweela. But in October 2004 this village too was attacked by the Janjaweed and his mother was killed. He then went to the village of Al Shyria where he met an agent who arranged for him to leave the country, which he did in October 2004. He reached the United Kingdom and claimed asylum on his arrival here on 22 November 2004.

    36.  The Secretary of State resisted Mr Hamid's claim by letter dated 19 January 2005 on the ground that the responses he gave to questions when he was interviewed indicated to the asylum caseworker that his account of his place of origin was not genuine. The caseworker did not believe that Mr Hamid was from Darfur. So she did not accept that he would be at risk of being killed or subjected to any other ill-treatment if he returned to Sudan. She held that he did not have a well-founded fear of persecution in Sudan on the grounds of his race.

    37.  Mr Hamid's case was reconsidered by an adjudicator on 16 March 2005. She accepted his account of his origins and background and of what had happened to him in Sudan. She concluded that he had established that he had suffered persecution because of his ethnicity and that he would be at risk if he were to return to his home area. But she said that if he were to be returned to Sudan he would arrive at Khartoum. In her opinion he could remain there, as this was an area of his country where he would not have a well-founded fear of persecution. In reaching this decision she followed the reasoning of the Immigration Appeal Tribunal in MM (Zaghawa - Risk on Return - internal Flight) (Sudan) [2005] UKIAT 00069. She relied on the fact that he had no history of political involvement and was not a student. She said that, given the numbers of displaced people in Khartoum and their diverse ethnicity, there was no reason to think that he would be treated with suspicion and prejudice by the local security forces and there was no real likelihood of a risk of persecution or of treatment contrary to article 3 of the European Convention on Human Rights. She accepted that he had lost his family in Darfur and had had to flee the Janjaweed. But there was no evidence that he faced any health issues and, as he was aged 32, he was neither very young nor old. So, while it might well be difficult and even harsh for him to relocate in Sudan, it would not be unduly harsh for him to do so in the circumstances. His appeal to the Asylum and Immigration Tribunal was rejected by the immigration judge.

(b) Mr Gaafar

    38.  Ibrahim Mohammed Gaafar too is a citizen of Sudan. He was born on 13 January 1973 and is a member of the black African muslim Al Berget tribe. He seeks asylum on the ground that he has a well-founded fear on grounds of race and because of his family's links with the Sudanese Liberation Movement ("the SLM"). His home village of Tawila is in north Darfur. On 7 March 2004 it was attacked during the night by the Janjaweed militia. Three people in his village were killed and many were injured. Crops and property were destroyed or stolen, some of the dwellings were burned down and his own home was looted. His village was attacked again by the Janjaweed militia during the night of 22 November 2004. They began looting property and killing people at random, so he fled from the village with other members of his family. On 27 November he heard that security agents had arrested his father and brother from their home in Sawar near Al Fashir in north Darfur to which they had moved after the attack on 22 November 2004. He was told that the security agents believed that they and the appellant had links with and were supplying weapons to the SLM. His uncle warned him that the security agents were looking for him too. He went into hiding, and was taken to the city of Al Kofra from where he travelled to the United Kingdom. He arrived here on 9 December 2004 and claimed asylum the next day.

    39.  The Secretary of State refused Mr Gaafar's claim by letter dated 27 January 2005. But there was no challenge in the refusal letter to the account that he had given of his ethnicity and tribal membership. His case was reconsidered by an immigration judge on 13 April 2005. She found that he was a displaced black African who had fled internally within north Darfur. But she rejected his account of what had taken place with regard to his father and brother, and she did not accept his claimed fear of return on the basis of political or imputed belief associated with his family. This left his fear of return on the basis of the treatment by the State of members of a black sedentary tribal minority, assuming that he was someone who had no political profile.

    40.  Having reviewed the Secretary of State's decision in the light of AB (return of Southern Sudanese) Sudan CG [2004] UKIAT 00260, the immigration judge concluded that, as a minority African tribe member, Mr Gaafar could be returned as an internally displaced person to live in a camp in or near Khartoum without any real risk of treatment of a severity that would breach article 3 of the European Convention. She accepted that Sudanese of non-Arab Darfurian background faced a heightened risk of scrutiny by security agents on their return to the country and that internally displaced persons often face forced relocation and return to their home areas. But she found that the treatment of black African Sudanese was the result of land reclamation and tribal warfare, not because there was a policy or desire to eradicate the black African tribal groups on the part of the Sudanese government. She said that it would not be unduly harsh for him to move into a camp for internally displaced persons on his arrival at Khartoum airport as he would be one of thousands of such persons who are members of a black African tribe, and he was an adult male who was able to fend for himself and had no political profile. His appeal to the Asylum and Immigration Tribunal was rejected.

(c) Mr Mohammed

    41.  Noureldeain Zakaria Mohammed is a citizen of Sudan also. He was born on 1 January 1970 and is a member of the Zaghawa tribe. He seeks asylum on the ground that he has a well-founded fear for reasons of race and because of his political opinion in that he is a member or at least a supporter of the Sudanese Liberation Army ("the SLA"). His home is in the village of Abogamra in Darfur. He claims that in March 2003 his village was attacked by armed Arab militia. He helped to defend the village, but eight people from his village were killed and many people were injured. In April 2003 he relocated to the city of Nyala where his sister lived. He remained there for about a year. He claimed that during his time there he became involved with a group of Zaghawans who were engaged in raising money and recruiting members for the SLA. In March 2004 he was told that three of his colleagues had been arrested and had informed on him. Fearing arrest, he fled first to Omdurman and then to Khartoum. He stayed in Khartoum for six months with a relative and continued with his SLA activities. On 10 September 2004 an SLA meeting which he was attending was raided. He escaped by jumping over a wall and went into hiding. On 29 September 2004 he left Sudan. He claimed asylum on his arrival in the United Kingdom on 1 October 2004.

    42.  The Secretary of State refused Mr Mohammed's claim by letter dated 1 December 2004. His case was reconsidered by an adjudicator who on 9 March 2005 dismissed the appeal. The adjudicator was invited by the Secretary of State to make adverse findings on Mr Mohammed's credibility, and he did so. He said that he did not find Mr Mohammed's evidence that he had been involved with the SLA or in political activities to be credible. He accepted that he had left Darfur in some way because of the conflict, but much of his evidence was in his judgment implausible, inconsistent and vague. He gave some examples of this, among which was the fact that his knowledge of the SLA's policies was particularly vague and limited. He declined to find that he was ever involved in politics either in Darfur or in Khartoum or that the authorities ever targeted him or were ever interested in him because of SLA activities. But he was prepared to find that if he were to return to Darfur he would, like many others of his tribe, be persecuted there because of his ethnicity.

    43.  Turning to the situation in Khartoum, the adjudicator said he was not satisfied that Mr Mohammed had had any problems there. He found that when Mr Mohammed was living in Khartoum he was able to stay with a relative there. He was on the face of it a fit and healthy young man. He acknowledged that it might be difficult for many people from Darfur to settle in Khartoum and that Mr Mohammed might find it necessary to go to a camp. But he was not satisfied that it would be unduly harsh for him to do so. He noted that Darfurians suspected of political activities did appear to be targeted by the authorities, but he was not satisfied that Mr Mohammed had a profile that would make him in any sense the target of the authorities. In his opinion there was a viable internal relocation option for him in Sudan. He added, with regard to his human rights appeal, that it had not been proved to the necessary standard that he would have to stay in a refugee camp were he to return to Khartoum, or that even if he were to have to stay in one that this would lead to treatment which would breach his rights under article 3 of the European Convention. His appeal to the Asylum and Immigration Tribunal was refused.

(d) The cases of Messrs Hamid, Gaafar and Mohammed in the Court of Appeal

    44.  On 10 June 2005 Elias J referred all these cases to the Court of Appeal pursuant to section 103C of the Nationality, Immigration and Asylum Act 2002. On 25 October 2005 the Court of Appeal (Lord Phillips of Worth Matravers CJ, Maurice Kay LJ and Sir Christopher Staughton) held that no error of law had been identified in the determinations and dismissed the appeals: [2005] EWCA Civ 1219. In para 42 of the court's judgment Maurice Kay LJ said, on the issue of asylum, that there was no general principle or presumption that persecution by or on behalf of the state is incompatible with acceptable internal relocation. The court held that on both asylum and human rights grounds the decisions were entirely compatible with the country guidance contained in AE (Relocation - Darfur - Khartoum an option) Sudan CG [2005] UKIAT 00101.

The issues of law

    45.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons that he has given, with which I am in full agreement, I too would hold that the question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic human rights.

    46.  There is, as Lord Bingham points out, no basis for such a test in the wording of article 1A(2) of the Refugee Convention. The principal objection to it is that it invites a comparison between the conditions which prevail in the place of relocation and those which prevail in the country in which asylum is sought. The conditions that prevail in the country in which asylum is sought have no part to play, as a matter of legal obligation binding on all states parties to the Convention, in deciding whether the claimant is entitled to seek asylum in that country. The extent of the agreement to which the states committed themselves is to be found in the language which they chose to give formal expression to their agreement. The language itself is the starting point: see Adan v Secretary of State for the Home Department [1999] 1 AC 293, 305D-E, per Lord Lloyd of Berwick. A successful claimant will, of course, be entitled to all the benefits that are set out in articles 2 to 34 of the Convention without discrimination as to race, religion or country of origin: see article 3. But to become entitled to those benefits the claimant must first show that he is entitled to the status of a "refugee" as defined in article 1A(2). At this stage, if the possibility of internal relocation is raised, the relevant comparisons are between those in the place of relocation and those that prevail elsewhere in the country of his nationality. As the Court of Appeal said in E and another v Secretary of State for the Home Department [2004] QB 531, para 67, 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 European Convention on Human Rights or the requirements of humanity.

    47.  The question where the issue of internal relocation is raised can, then, be defined quite simply. As Linden JA put it in Thirunavukkarasu v Canada (Minister of Employment and Immigration) (1993) 109 DLR (4th) 682, 687, it is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words "unduly harsh" set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.

    48.  Care must, of course, be taken not to allow the argument that there is an internal relocation option to defeat the basic purposes of the Convention. That is why there is a further question that must be considered where the claimant has a well-founded fear of persecution for a Convention reason which is due to action taken, or threatened to be taken, against him by the state or by state agents within the country of his nationality and it is suggested that he could reasonably be expected to live in a place of relocation there. The dangers of a return to a country where the state is in full control of events and its agents of persecution are active everywhere within its borders are obvious. It hardly needs to be said that in such a case internal relocation is not an option that is available. Remoteness of the suggested place of relocation from the place of origin will provide no answer to the claimant's assertion that he has a well-founded fear of persecution throughout the country of his nationality.

    49.  On the other hand control of events by the state may be so fragmented, or its activities may be being conducted in such a way, that it will be possible to identify places within its territory where there are no grounds for thinking that persecution by the state or its agents of the claimant for a Convention reason will be resorted to. A civil war may take that pattern where the extent of it is localised. So too may the process of ethnic cleansing affecting people of the claimant's ethnicity which is in progress in one area but not in others. The state may be ruthless in its attempts to move people of a given ethnicity out of one area. But it may be benign in its treatment of them when they reach an area which it regards as appropriate for people of that ethnicity. Of course, one kind of brutality may lead to another. Those who object to the state's policy may be treated differently from those who do not, wherever they happen to be for the time being. And those who move to a safe area may be at risk of being forced to move back again. The situation in the country of the claimant's nationality may be so unstable, or the persecution which the state condones in one place may be so difficult to limit to a given area, that it would be quite unreasonable to expect the claimant to relocate anywhere within its territory.

    50.  In practice the tribunal tries to provide guidance as to how cases that originate from areas of particular difficulty should be dealt with. The country guidance cases that have already been mentioned seek to achieve this result: see AB (return of Southern Sudanese) Sudan CG [2004] UKIAT 00260; MM (Zaghawa - Risk on Return - internal Flight) (Sudan) [2005] UKIAT 00069; AE (Relocation - Darfur - Khartoum an option) Sudan CG [2005] UKIAT 00101. Where this is done, that guidance should be followed by immigration judges. It is desirable that they should do so in the interests of fairness and consistency. But in the end of the day each case, whether or not such guidance is available, must depend on an objective and fair assessment of its own facts.

    51.  The question that remains is how these principles are to be applied to these appeals.

Disposal in Mr Januzi's case

    52.  The situation in Kosovo is sufficiently stable for internal relocation to be regarded as a realistic alternative for an ethnic Albanian who is exposed to persecution in a part of the province where people of his ethnicity are in the minority. Mr Blake QC for Mr Januzi did not challenge this proposition in its application to ethnic Albanians in general. He raised a problem that is particular to Mr Januzi's own case, in view of the prospect that his already fragile mental health would deteriorate if he were to return to Kosovo. He submitted that the evidence showed that conditions for the medical treatment that he would need in the place of relocation are below the standards for the provision of basic norms of civil, political and socio-economic rights that are regarded as acceptable internationally. His case is that it would be unduly harsh, in the context of an untreated severe psychological distress, for Mr Januzi to be required to live in a place where he has no family or friends or community ties, no independent means of subsistence and no prospect of gainful employment. The submission that account should be taken of the extent to which conditions in Pristina fall below those which are regarded internationally as acceptable was an essential step in that argument.

    53.  The Court of Appeal followed the guidance that was to be found in E and another v Secretary of State for the Home Department [2004] QB 531, para 67. They confined their attention to the situation in the country of Mr Januzi's nationality. The evidence showed that the difficulties, both in terms of their likely effect on him and also of the availability of treatment for his mental condition should it deteriorate, extended throughout Kosovo. There was nothing to show that the problems that he would face in obtaining accommodation and enjoying other civil, political or socio-economic rights were not a pan-Kosovo problem also. In a judgment with which the other members of the court agreed, Buxton LJ noted that in Karanakaran (Nalliah) v Secretary of State for the Home Department [2000] 3 All ER 449, 456 Brooke LJ described the test of undue harshness as a very rigorous one. But in his judgment it was clear that, applying any sort of rigorous test, relocation was an option that was available to Mr Januzi.

    54.  Once it is accepted, as in my opinion it must be, that a comparison between the basic norms of civil, political and socio-economic rights that are regarded as acceptable internationally and the situation in Kosovo is not relevant, the argument that there was a defect in the Court of Appeal's reasoning in Mr Januzi's case falls away. I would wish to sound a note of caution on one point only. In para 28 of his judgment Buxton LJ said that conditions which extend throughout Kosovo are irrelevant because they apply in both places and cannot be taken into account in the balance. I would prefer to put the point that he was making differently. It is the fact that there is a difference between the standards that apply throughout the country of the claimant's nationality and those that are regarded as acceptable internationally, and this fact only, that is irrelevant. The fact that the same conditions apply throughout the country of the claimant's nationality is not irrelevant to the question whether the conditions in that country generally as regards the most basic of human rights that are universally recognised - the right to life, and the right not to be subjected to cruel or inhuman treatment - are so bad that it would be unduly harsh for the claimant to have to seek a place of relocation there. As Mr Rabinder Singh QC for the Secretary of State observed, one does not need to rely on the European Convention on Human Rights to conclude that if conditions are that bad relocation there would be unduly harsh. But the evidence about the conditions in Kosovo on which Mr Blake relies does not begin to approach that standard. I would dismiss Mr Januzi's appeal.

Disposal in the cases of Messrs Hamid, Gaafar and Mohammed

 
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