Judgments - Secretary of State for the Home Department (Appellant) v. AH (Sudan) and others (FC) (Respondents)

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21.  We are also all agreed that the test for internal relocation under the Refugee Convention is not to be equated either with a “well-founded fear of persecution” under the Convention or with a “real risk of ill-treatment” contrary to article 3 of the European Convention on Human Rights. By definition, if the claimant had a well-founded fear of persecution, not only in the place from which he has fled, but also in the place to which he might be returned, there can be no question of internal relocation. The question pre-supposes that there is some place within his country of origin to which he could be returned without fear of persecution. It asks whether, in all the circumstances, it would be unduly harsh to expect him to go there. If it is reasonable to expect him to go there, then he can no longer claim to be outside his country of origin because of his well-founded fear of persecution. Mercifully, the test accepts that if it is not reasonable to expect him to go there, then his continued absence from his country of origin remains due to his well-founded fear of persecution.

22.  Further, although the test of reasonableness is a stringent one - whether it would be “unduly harsh” to expect the claimant to return - it is not to be equated with a real risk that the claimant would be subjected to inhuman or degrading treatment or punishment so serious as to meet the high threshold set by article 3 of the European Convention on Human Rights. As Lord Bingham points out, this is not what was meant by the references to article 3 in Januzi, including what was said by my noble and learned friend, Lord Hope of Craighead, when he referred to “the most basic of human rights that are universally recognised” at para 54. Obviously, if there were a real risk of such ill-treatment, return would be precluded by article 3 itself as well as being unreasonable in Refugee Convention terms. But internal relocation is a different question.

23.  My concern has been that, in the course of an immensely long and detailed consideration of the huge quantity of evidence before them, the Tribunal did not clearly separate the three questions which had to be asked of that evidence. Much of their discussion is directed at the risks, whether of persecution or of article 3 ill-treatment, which would face people in general, and non-Arab Darfuris in particular, if returned to Khartoum. They found that, except in certain types of case, the evidence did not support such risks: there were not the specific instances of ill-treatment or disappearances of people returning to Khartoum which they would expect to find if such general risks were real. These findings may well be controversial; there may now be further evidence which requires the issue to be reconsidered; but the Tribunal’s findings on those issues are not the subject of this appeal. We are concerned with the discrete question of relocation, in which risk is only one factor to be considered.

24.  At several points in the determination, the Tribunal refer to “persecutory harm, ill treatment contrary to article 3 or to undue hardship in the context of a claim for international protection under the Refugee Convention” (para 228; emphasis supplied; also para 264); “real risk of serious harm or of ill-treatment contrary to article 3 or of unduly harsh conditions” (para 244; emphasis supplied); “persecutory harm, ill treatment contrary to article 3 or difficulties which are unduly harsh or unreasonable in the context of claims for international protection” (para 265; emphasis supplied). Although these phrases refer to the three different concepts, Mr Manjit Gill QC argues powerfully on behalf of the claimants that they do so in terms which suggest that they amount to much the same thing.

25.  The impression that the Tribunal may be equating “unduly harsh” with an article 3 risk is reinforced in several places. Most notable is para 150, quoted by Lord Bingham at para 6 earlier, because this is where the Tribunal summarize the principles derived from Januzi that they intend to apply. Also notable, however, is the approach in those paragraphs which are expressly dealing with the conditions in squatter areas and IDP camps in and around Khartoum: the Tribunal correctly state, in para

230, that they have to examine “two distinct matters. One relates to safety. The other relates [to] the extent to which conditions are unduly harsh or unreasonable". But they go on in para 235 to state:

“The lack of any UN-related finding that conditions in the camps and/or squatter areas are generally at the level of the international equivalent to what we in Europe refer to as the article 3 ECHR standard, is an important reference point for us in having to decide the issues in this case, since it is clear from Januzi that what we have to consider is whether the conditions in the place of relocation fall below the most basic human rights, in particular non-derogable human rights (see Lord Hope, Januzi, para 54).”

And again, when examining medical facilities, in the context of their “specific bearing on the issue of internal relocation", the Tribunal quote for a third time from para 54 of Januzi (in para 257), giving once more the impression that in their view, the tests for “unduly harsh” and Article 3 are the same. They go on to conclude in para 259:

“Nor does the evidence show . . . that the health facilities available in the squatter areas and camps for displaced persons in and around Khartoum are so bad as to deprive those who live there, not just of the ‘basic norms of civil, political and socio-economic rights that are regarded as acceptable internationally’ but also of ‘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'".

26.  In short, while the determination often runs the three concepts together in the manner quoted above, where it separates off the question of whether conditions in the Khartoum area are “unduly harsh", it appears to be equating that with inhuman treatment under Article 3. If that is indeed what the Tribunal did, then they themselves applied too harsh a test.

27.  That concern is allied to another. We know that the standard of comparison is not the lives which the returning claimants are living here: that is what Januzi was all about. We know that the lives they led before the persecution are a relevant factor but not, as the Court of Appeal thought, the starting point. We know that the lives they will face on return have to be considered in the context of “standards prevailing generally in the country of nationality": Lord Bingham in Januzi, para 20. If people can return to live a life which is normal in that context, and free from the well-founded fear of persecution, they cannot take advantage of past persecution to achieve a better life in the country to which they have fled: see Lord Bingham in para 5 of his opinion. But this does not mean that the holistic consideration of all the relevant factors, looked at cumulatively, can be replaced by a consideration of whether their circumstances will be worse than the circumstances of anyone else in that country.

28.  Yet the Tribunal concluded that because the conditions faced by returning Darfuris, however appalling, would be no worse than those faced by other Sudanese IDPs it would not be not “unduly harsh” to expect them to return. The standard of comparison was, not with their lives in Darfur before their persecution, not with the general run of ordinary lives in Sudan, not even with the lives of poor people in Sudan, but with the lives of the poorest of the poor, internally displaced victims of the civil war in the south, living in camps or squatter slums, and “subject from time to time to relocations, sometimes involving force and human rights violations” (para 244). They too had been subsistence farmers, ill-equipped to survive in the city slums (para 239); they too had suffered the psychological horrors of civil war (para 238), if not of government-backed genocide; the Darfuris would be no worse off, unless particular individuals attracted the adverse interest of the authorities (para 242). With respect, this is not the individualised, holistic assessment which the question requires.

29.  My concern, therefore, is that, although the determination does refer to many relevant considerations, it effectively equates “unduly harsh” with Article 3 ill-treatment; subordinates all considerations to a comparison with the very worst lives led by other Sudanese; and rejects any claim unless there is reason to believe that the individual will be targeted for special attention by the authorities, thus harking back to the fear of persecution as well as Article 3 ill-treatment. No doubt this is the product of the mass of evidence and the multi-pronged case the Tribunal had to consider. But a thorough reading of the determination as a whole has not entirely dispelled these concerns.

30.  I spell them out, not to disagree with the result upon which your lordships are agreed, but in the hope that similar concerns will not arise in such cases in the future. This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. I cannot believe that this eminent Tribunal had indeed confused the three tests or neglected to apply the correct relocation test. The structure of their determination can be explained by the fact that this was a “country guidance” case: but that makes it all the more important that the proper approach to the internal relocation alternative, as explained by the House in this case, is followed in future.

31.  In agreement with the reasoning of Lord Bingham, therefore, I would allow this appeal. I should add that, in any event, I would have dismissed the appeal of NM. The adjudicator found that he had no good reason for leaving Khartoum where he had been living a normal life for six months after leaving Darfur. His claim could properly be regarded as opportunistic.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

32.  Millions living in the poorer countries of the world suffer terribly from poverty, from famine, from floods, from ill-health, from various human rights abuses. Many in addition suffer, or at any rate have a well-founded fear of, persecution. But such as suffer this additional fear, provided only that they can escape to a richer and safer country, are in a sense the lucky ones. For them the risk of persecution is often in reality amongst the least of their problems, less threatening than the direr risks they face from ill-health and extreme poverty. Yet once they achieve refugee status, not merely are they safeguarded from return home but they secure all the manifold other benefits provided for under the Refugee Convention.

33.  To secure these benefits, however, an asylum-seeker must fall strictly within the definition of “refugee” set out in article 1A(2) of the Refugee Convention. This is not a Convention designed to meet all humanitarian needs—far from it, perhaps understandably given the countless millions who would otherwise be entitled to its benefits. Consider the range of those excluded from its protection. As was observed in the Australian case of A v Minister for Immigration and Ethnic Affairs [1998] INLR 1, 18:

“No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention.”

Nor are those involved in civil war. Nor those persecuted for non-Convention reasons. Nor those affected by ill-health, even if their return home would dramatically shorten their life expectancy—see N v Secretary of State for the Home Department [2005] 2 AC 296, holding AIDS sufferers to be outside the protection even of article 3 of the ECHR. Nor is refugee protection extended to those who have no present fear of persecution—circumstances in their home country having improved— (Adan v Secretary of State for the Home Department [1991] 1 AC 293), not even if there exist compelling reasons arising out of their previous persecution for them not to be returned home (R (Hoxha) v Special Adjudicator [2005] 1 WLR 1063).

34.  What, then, is the position of those who would continue to suffer persecution if returned to the same part of their country of origin from which they fled (their place of habitual residence) but who would be safe from persecution if they relocated elsewhere within that country (a safe haven)? That is the situation of the three respondents before the House: they would be persecuted if returned to Darfur but not if relocated in Khartoum. The Tribunal so found, justifiably as the Court of Appeal held, and your Lordships are not asked to revisit this issue.

35.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and there is not a word of it with which I disagree. As my Lord has observed, as recently as last year (indeed in a case involving these same respondents), the House in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 was concerned with much the same questions as arise now: the position of those able to be safely relocated at home who nevertheless seek refugee status. The relevance of the relocation option was explained; it goes to the question whether, within the article 1A(2) definition of refugee, the asylum-seeker is properly to be regarded as outside his home country (a) because of a well founded fear of persecution or (b) given that he could in fact be safely relocated elsewhere in that country, for different, if entirely understandable, reasons such as a general desire to improve his lot. Januzi also examined at length the extensive jurisprudence surrounding the whole question of internal relocation and laid down the approach to be taken when the possibility arises:

"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.” (Lord Bingham at para 21).

36.  As Lord Bingham now observes (para 5): “It is not easy to see how the rule could be more simply or clearly expressed.” And (at para 13), the test “exclud[es] from consideration very little other than the standard of rights protection which an applicant would enjoy in the country where refuge is sought.”

37.  Despite the apparent clarity and simplicity of the test, however, the arguments before your Lordships suggest that doubts and misconceptions still exist about its proper application, and not least the relevance of the conditions prevailing in the place of habitual residence (the place of persecution from which the claimant fled and to which he cannot safely return.) The ultimate decision to be made is, as stated, whether it is on the one hand “reasonable” or on the other hand “unduly harsh” to require the claimant to relocate. Clearly the conditions and circumstances of his previous way of life may inform that decision, bearing for example upon his ability to adapt to whatever changes and challenges are involved in relocation. But it is wrong to suggest, as the Court of Appeal do, that the critical contrast to be struck is between the circumstances in which the claimant lived when persecuted and those he would face in the proposed safe haven—so that if, for example, he had been rich and lived well but now, if relocated, would face comparative poverty, he would for that reason be entitled to asylum.

38.  True it is that in the Court of Appeal’s judgment in E v Secretary of State for the Home Department [2004] QB 531 (to which I myself was party) there appears this (at para 24):

“[T]he 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.”

And this (at para 64):

“So far as refugee status is concerned, a comparison must be made between the asylum seeker’s conditions and circumstances in the place where he has reason to fear persecution and those that he would be faced with in the suggested place of internal location. If that comparison suggests that it would be unreasonable, or unduly harsh, to expect him to relocate in order to escape the risk of persecution, his refugee status is established.”

Nor were those passages specifically criticised by the House in Januzi. The real point decided in E, however, was not that but rather the rejection of the asylum seeker’s contended-for test by which he sought to take advantage of a contrast with the conditions prevailing in the country in which asylum is sought.

39.  Taken as a whole the speeches in Januzi are really quite irreconcilable with the respondents’ submission to your Lordships that the comparison between conditions in the place of persecution and those in the safe haven is the all important one. Rather, as Januzi—and, indeed, the 2003 UNHCR guidelines—make clear, in determining the reasonableness of the proposed relocation regard must be had to conditions generally in the country of origin.

40.  Paragraph 7 II (a) of the Guidelines asks: “Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?” Entirely consistently, my noble and learned friend Lord Hope of Craighead in Januzi (at para 47) observed:

“The question . . . 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, . . . it will not be unreasonable to expect him to move there.”

And this surely is the logical approach. As Lord Bingham put it in Januzi (at para 19): “It would be strange if the accident of persecution were to entitle him [an asylum seeker who, having escaped from a poor to a rich country, could without fear of persecution return to live elsewhere in his country of origin] to escape, not only from that persecution, but from the deprivation to which his home country is subject.”

41.  Certainly, as I suggested at the outset, there are cases in which “the accident of persecution” does enable the asylum seeker to escape not merely persecution but all the other, often more threatening, afflictions (ill-health, starvation and the like) facing his future well-being at home. But they are not cases where there exists the possibility of safe internal relocation. In these, safe option, cases, an argument could no doubt be made for saying—as is said in cases where the persecution from which the claimant fled has now ended—that, without more, international protection from persecution is no longer required. But such an argument is not made. Instead it has long been accepted that refugee status will not be withheld where it would be “unduly harsh” to expect the claimant to relocate in his home country. And it is conceded by the Secretary of State before your Lordships that it could, in principle be unduly harsh to require an asylum seeker to relocate in his or her home country if, for example, that would involve the sort of devastating consequences to health that were expected to follow the HIV sufferer N’s return to Uganda: [2005] 2 AC 296. In short, the strictness of what might be seen as the logical application of the Convention has, as Brooke LJ put it in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, 456, “been tempered by a small amount of humanity". Nevertheless, as Brooke LJ also observed there, the test of undue harshness “is still a very rigorous test", a point re-emphasised by Lord Carswell [2006] 2 AC 426, para 67 (and, I apprehend, accepted by the other members of the Committee) in Januzi itself.

42.  As mentioned, one touchstone of whether relocation would involve undue hardship, identified in the UNHCR guidelines and referred to in the passage already cited from para 47 of Lord Hope’s speech in Januzi, is whether “in the context of the country concerned” the claimant can live “a relatively normal life". The respondents are fiercely critical of the Tribunal’s approach to this question in the present case. In particular they criticise the Tribunal’s conclusion as to “the subsistence level existence in which people in Sudan generally live". To my mind, however, this criticism is misplaced. It is not necessary to establish that a majority of the population live at subsistence level for that to be regarded as a “relatively normal” existence in the country as a whole. If a significant minority suffer equivalent hardship to that likely to be suffered by a claimant on relocation and if the claimant is as well able to bear it as most, it may well be appropriate to refuse him international protection. Hard-hearted as this may sound, and sympathetic although inevitably one feels towards those who have suffered as have these respondents (and the tens of thousands like them), the Refugee Convention, as I have sought to explain, is really intended only to protect those threatened with specific forms of persecution. It is not a general humanitarian measure. For these respondents, persecution is no longer a risk. Given that they can now safely be returned home, only proof that their lives on return would be quite simply intolerable compared even to the problems and deprivations of so many of their fellow countrymen would entitle them to refugee status. Compassion alone cannot justify the grant of asylum.

43.  I too regard the Court of Appeal’s approach to have been wrong. There was no sound basis here for overturning the Tribunal’s decision. Certainly, as both Lord Bingham (at para 11) and my noble and learned friend Baroness Hale of Richmond (throughout her opinion) indicate, the Tribunal’s determination could have been clearer. (Lady Hale’s concerns, I would respectfully suggest, valuably illuminate the correct approach to the question of undue harshness by focusing on a series of what plainly would have been errors of approach—such as to have asked whether the claimant’s “circumstances will be worse than the circumstances of anyone else in that country” (para 27)). I too conclude, however, that so expert and experienced a Tribunal cannot readily be supposed to have committed any of these errors sought to be inferred from its sometimes infelicitous drafting. I too, therefore, would allow the Secretary of State’s appeal and make the order Lord Bingham proposes.

 
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