AE (Relocation-Darfur-Khartoum an option) Sudan [2005] UKAIT
00101
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 19 April 2005
Date Determination notified: 3 May 2005
Before
The Hon. Mr Justice Hodge (President)
Miss E R Arfon-Jones (Deputy President)
Between
AE
|
APPELLANT |
and
|
|
| Secretary of State for the Home
Department |
RESPONDENT |
For the Appellant Ms L Saunders, Counsel
For the Respondent Ms L Hooper, Counsel
DETERMINATION AND REASONS
Internal relocation in the Khartoum area is an option for those fleeing
from Darfur. The available evidence does not show that on any such relocation
every Darfurian faces a real risk of persecution or ill treatment contrary to
article 3
- The appellant is a citizen of the Sudan. He was born
on the 5th October 1985 so is now 19. He claimed asylum in the
United Kingdom on his arrival on 24th June 2003. That claim was
refused but he was granted exceptional leave to remain. His application for
further leave led to a refusal to vary leave to enter or remain by the
respondent on 19th April 2004. The appellant appealed and his
appeal was heard by Mr F Pieri, Adjudicator, in Glasgow.
- The adjudicator found the appellant credible. He
accepted that the appellant is a member of the Massaleit tribe from the Darfur
area of Sudan. In his determination promulgated on the 6th August
2004 the adjudicator concluded:-
"It seems to me clear when this appellant's past experiences are
placed in context of the current background material that there is a real
risk of the appellant suffering ill-treatment amounting to persecution and a
breach of Article 3 in the Darfur area now. Members of his close family have
suffered terribly in the past. The situation in the Darfur area is still
dire. The ill-treatment he risks suffering is on account of his race and so
falls within the terms of the Refugee Convention."
- The adjudicator having concluded that the claimant
had a well-founded fear of persecution in the Darfur area of Sudan went on to
consider the question of internal relocation. He concluded at paragraph 42
"Internal relocation has no part to play in the circumstances of this appeal".
It is against that decision that the Secretary of State applied for permission
to appeal to the Immigration Appeal Tribunal.
- That application was considered by Mr P R Lane (Vice
President). He granted permission to appeal and concluded that the
determination of the adjudicator contains arguably a mistake in law in the
application by the adjudicator of the concept of internal relocation within
the context of the Refugee Convention.
- By Article 5 of the Asylum and Immigration
(Treatment of Claimants etc.) Act 2004 (Commencement no. 5 and Transitional
Provisions) Order 2005 (SI 2005/230), any appeal which immediately before the
commencement of the 2004 Act is pending before the Immigration Appeal Tribunal
shall, after commencement of that Act, be dealt with by the Asylum and
Immigration Tribunal as if it had originally decided the appeal and it was
reconsidering its decision.
- As this is an appeal before the Asylum and
Immigration Tribunal we will refer to the claimant as the appellant and the
Secretary of State as the respondent notwithstanding the fact that the
application for permission to appeal was made by the Secretary of State. In
accordance with paragraph 14.8 of the Practice Directions of the President of
the AIT issued on 4th April 2005, we must consider whether the
adjudicator made a material error in law.
Material Error of Law
- We first considered whether the determination in
this case contained a material error of law. The Adjudicator dealt with the
issue of internal relocation and made his findings as follows:-
38. That leaves the question of internal relocation. Mrs Ahmed
submitted that the background material shows that the Massaleit do not
suffer at the hands of the authorities out with the Darfur area. I agree.
The background material shows that there are many displaced people from
Darfur living elsewhere in Sudan. This however appears to me to raise a
difficult issue. I shall explain.
39. Underlying the whole question of refugee status is surrogate
protection. In the normal course a person living in an area of a country
where he is at risk of persecution at the hands of non state agents who act
with impunity in that area can be expected to relocate to another safe area
of the country still controlled by the government, if such an area exists,
as the government will protect him in that other area. That provides the
paradigm example of internal relocation. The situation however in Darfur
appears to me to be far removed from this.
40. In Darfur Arab militias are attacking black Africans such as
the Massaleit. These Arab militias were the source of the ill-treatment
endured by the Appellant's family. What distinguishes this from the typical
example I set out earlier is that there appears to me on the background
evidence, at the very least, a real risk that these Arab militias are acting
with the support and the complicity of the Sudanese Government. In these
circumstances does internal relocation to another area of Sudan have any
part to play? The answer to this, in my view, can be found be examining the
persecution which this appellant risks facing. It is more than a risk of
persecution by Arab militias. It is a risk of persecution by Arab militias
acting with the support of the government.
41. I return to the United Nations News document of
23rd June 2004. That states that a UN Human Rights Report has
found many human rights violations in the Darfur area including ethnic
displacement. The United Nations News Bulletin of 2nd April 2004
talks of forced depopulation of entire areas. On the whole evidence there
appears to me to be a real risk that forced depopulation is one of the aims
of the Arab militias. As I have said there also appears to me at the very
least a real risk that the Arab militias are acting with the support and
complicity of the Sudanese government. There appears to me to be something
fundamentally flawed in the suggestion that in such circumstances the
Appellant should be expected to relocate to Khartoum or some other area in
Sudan rather than seeking surrogate protection of the international
community. By moving to another area of Sudan he could not be said to be
obtaining the protection of the government against the persecution sponsored
by the same government in Darfur. At best, it seems to me, all that could be
said is that the Appellant would have moved to an area where his persecutors
have no interest in him and would have gone along with one of his
persecutors' objectives namely that he and his kind be displaced from the
area where he once lived. To go along with the wishes of his persecutors may
result in his being safe but it is far removed from his obtaining protection
from his persecutors. I find support for these conclusions in the Michigan
Guidelines on the internal protection alternative and Macdonald, Immigration
Law Practice paragraph 12.43.
42. In my view therefore internal relocation has no part to play
in the circumstances of this appeal."
Submissions on Error of Law
- The Secretary of State argued that the adjudicator
made a legal mistake in the manner in which he considered internal relocation.
It is said he failed to consider the argument raised with him that the
appellant will not have any need for protection if he is relocated to a
different area. Even if it were accepted that the State was complicit in the
events of Darfur that does not rule out the possibility that a safe haven
cannot be found elsewhere in Sudan. He is further said to have erred in
finding that the appellant by moving to another area in Sudan would not be
availing himself of the protection of the State. It was also suggested that
there was no objective evidence that indicates the problems in Darfur extend
out with the Darfur area. Indeed there is no real risk of persecution says the
Secretary of State for the appellant if he were to relocate.
- Counsel for the appellant described the activities
of the militias in Darfur supported by the Sudanese government as ethnic
cleansing and forcible displacement. It was said this continues in any place
of relocation. The adjudicator adopted the right approach. The persecution in
Darfur is government sponsored. Reliance was placed on paragraph 31 of the
UNHCR Guidelines on International Protection … "Internal Flight or Relocation
(UNHCR 23rd July 2003)". At paragraph 31 it is said "Where internal
displacement is a result of ""ethnic cleansing"" policies, denying refugee
status on the basis of the internal flight or relocation concept could be
interpreted as condoning the resulting situation on the ground and therefore
raised additional concerns".
Conclusions on Error Law
- We are satisfied that the adjudicator made a
material error of law in his conclusion on the issues of internal relocation.
The appellant was held to be a Massaleit. The adjudicator concluded members of
that tribe do not suffer at the hands of the authorities outwith the Darfur
area and that there are many displaced people from Darfur living elsewhere in
Sudan. The internal relocation alternative would, the Adjudicator concluded,
have meant the claimant moving to an area where his persecutors have no
interest in him. But he would be displaced from the area where he had once
lived. That it was said "...may result in his being safe but it is far removed
from his obtaining protection from his persecutors".
- The proper start-point for any consideration of
the question of internal relocation is set out in paragraph 91 of the 1979
UNHCR Handbook as follows:-
"Relocation Within County of Origin.
Where it appears that the persecution is clearly confined to a
specific part of the country's territory, it may be necessary in order to
check that the condition laid down in Article 1 a of the Geneva Convention
has been fulfilled, namely that the person concerned is ""is unable or owing
to such fear (of persecution), is unwilling to avail himself of the
protection of that country,"" to ascertain whether the person concerned
cannot find effective protection in another part of his own country, to
which he may reasonably be expected to move".
This issue has been considered jurisprudentially on many occasions in many
jurisdictions. The leading UK cases are R v Secretary of State for the Home
Department ex parte Robinson [1998] QB 929 as reconsidered and further interpreted in the light of the Human
Rights Act 1998 in AE and FE v Secretary of State for the Home Department
[2003] INLR 475 CA.
- At paragraph 67 of AE and FE the Master of the
Rolls concluded in relation to the right to refugee status under the Refugee
Convention that: "consideration of the reasonableness of internal relocation
should focus on the consequences to the asylum seeker settling in the place of
relocation instead of his previous home". This as was said at paragraph 24
"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".
- This is not the approach taken by the adjudicator
in this case. He appears to have accepted that the claimant would not suffer
at the hands of the authorities out with the Darfur area and his persecutors
would have no interest in him and he may indeed be safe away from Darfur.
Nevertheless he allowed the appeal. That he did so indicates a misconception
of the internal relocation test. On this logic, there is a further requirement
in order to be able to show that internal relocation is not available. It is
not sufficient despite the person moving being safe in the area to which he
moves. His move must also not accord with the wishes of his persecutors. But
the wishes of one's persecutors will only matter in this context if as a
matter of fact they adversely impact on the situation in which a person finds
himself: see para. 24 AE and FE (above).
- The background material quoted by the adjudicator
suggests complicity by the government of Sudan in a campaign of ethnic
cleansing in the Darfur region. There is nothing in UK law to support the
assertion in paragraph 31 of the UNHCR Guidelines on International Protection
quoted (see para. 9 above) that if there has been a policy of "ethnic
cleansing" acceptance of the viability of internal relocation condones that
policy or could be interpreted as condoning that policy. We do not accept it
is legitimate to claim that governmental or governmental supported action
amounting to persecution directed against an individual or group because of
their ethnicity leading to their being displaced to another area in their
country must lead to an entitlement to international protection as refugees
even if, in the area to which they are displaced, there is no real risk of
there being persecuted.
- When considering internal relocation the
adjudicator erred in law by failing to focus on the consequences to the
appellant of settling in the place of relocation instead of his previous home.
He should have considered the background information on the proposed place of
internal relocation having regard to the impact that that will have on a
person with the characteristics of the appellant. In general terms if there is
a safe haven within his own country for a person who has been persecuted in
another part of that country even with the complicity of the government then
the international community can expect a claimant to go there. Many hundreds
of thousands of people appear to have been displaced from Darfur as a result
of the activities of the militias widely condemned by the international
community as ethnic cleansing. If as a matter of fact they are safe elsewhere
in Sudan it cannot be the responsibility of the international community to
give them refuge merely because of the abhorrent nature of the policy which
has driven them from their homes. We speak here of the position generally. Of
course, in any individual case there may be specific circumstances which would
still cause relocation to be unduly harsh, but none were identified by the
adjudicator in this case.
- We, therefore, concluded that the adjudicator had
made a material error of law. We heard submissions on whether to proceed to
hear and determine the case or to adjourn it for the gathering of further or
other evidence. We noted the claimant had filed further and fresh evidence
dealing with the background position in Sudan. An expert's report from a Mr F
H Verney had been filed and the witness had attended at the hearing. We
concluded we should consider the evidence provided and hear from the witness
and reconsider the decision in this appeal.
Internal Relocation in Sudan: IAT Decisions
- The adjudicator found that this claimant would be
at risk of persecution were he to return to his home area in Darfur. It is the
Secretary of State's case that there is no objective evidence that indicates
the problems in Darfur extend out with the Darfur area and there is no real
risk to Darfur Africans returning to Khartoum. The IAT has considered the
issue of internal relocation to Khartoum in a number of recently reported
cases.
- In AA (Kreish Ethnicity, Decree 4/307 (Sudan)
[2004] UKIAT 00167 the Tribunal considered the background evidence about the
internal displacement camps in Khartoum. At paragraph 23 they said as
follows:-
"We feel nonetheless that the claimant could be returned without
being at risk of Article 3 harm even if it meant he would have to be placed
in an internal displacement camp in Khartoum. Approximately 1.8 million
internally displaced persons are living around Khartoum and the Norwegian
Report makes it plain their conditions are difficult. What the Report also
makes plain, however, if that their conditions cannot be said to be inhumane
or degrading. Employment is scarce and there is much poverty but there are
health facilities and water facilities for those who live in camps and for
approximately 70% of the IDPs in Khartoum there is access to some form of
medical service".
The Tribunal relied on a Norwegian Refugee Council's profile of Internal
Displacement on Sudan dated 19th May 2004 which as the Tribunal
pointed out "…contains a very large amount of material relating to the
position of displaced persons in Sudan gathered over the last two or three
years."
- In AB (Return of Southern Sudanese) Sudan CG 20
[2004] UKIAT 00260 a determination promulgated on the 17th September
2004 the Tribunal quoted a letter from the UNHCR of the 1st July
2002 relating to the potential placement of southern Sudanese in camps in
Khartoum. UNHCR said as follows:-
"Such persons may be placed in camps for the internally
displaced and would likely be compelled to contend with harsh living
conditions and physical insecurity".
- In commenting on this letter the Tribunal said at
paragraph 33:
"There is no evidence to show that (the claimant) would be at
real risk of finding himself in a camp for displaced persons. Even if he
did, the UNHCR letter contains no assertion that conditions in a camp for
the internally displaced, albeit involving harsh living conditions and
physical insecurity, would be such as to cross the high threshold applied
for Article 3".
- Again in MM (Zaghawa – risk on return –
internal flight) Sudan 2005 UK IAT 00069, a decision published on the
9th March 2005, the Tribunal again considers this issue. The
claimant in AA was of Kreish ethnicity and the claimant in AB
was from southern Sudan. The claimant in MM was not of the same
ethnicity as the appellant in this case but was from Darfur. The Tribunal
therefore addressed the issue of whether the appellant in MM could
safely relocate within the Sudan and whether it would be unduly harsh for him
to do so and considered any risk the appellant might face in Khartoum where he
would be returned to.
- The Tribunal in MM relied on a UNHCR letter
of the 18th May 2004 concerning "return of failed asylum seekers to
Sudan". Quoting UNHCR at paragraph 35 the Tribunal said:
"Internally displaced persons from Darfur also often face
protection risks, including forced relocation, forced return. We do not find
that the heightened risk of scrutiny is enough to amount to persecution in
breach of Article 3 of the ECHR. The appellant was not a student. We note
that the UNHCR cited only one example of the authorities moving into a camp
to evict residents and forcibly relocating them to the outskirts of
Khartoum. This one example does not show that evictions are being
systematically carried out on all the camps and does not make it a real
risk".
- Again referring to the UNHCR letter of the
18th May 2004 the Tribunal said at paragraph 37:
"The UNHCR describes the conditions as precarious. This limited
information is insufficient to lead to a finding that the conditions in the
camp amount to a breach of Article 3 or that the displaced persons in those
camps are persecuted by reason of their ethnicity by the authorities who run
the camps."
- In MM the Tribunal heard evidence from
Peter Verney, the witness in this case. They said in response to his
evidence," We do not find that this evidence paints a picture of systematic
human rights abuses of displaced Darfurians in Khartoum".
- The appellant also maintains that there is a real
risk that on any return to Khartoum he will be detained by the internal
security services and presumably ill-treated. This issue was also addressed in
the three cases cited. In AA at paragraph 16 the Tribunal said:
"We find it entirely plausible that someone who has been away
from Sudan for a long time will be questioned and may be required to make
tax payments in foreign currency but that could not amount to persecution
and we see no reason to suppose that this would place a person at the risk
of Article 3 harm.
At paragraph 17, it added:
"We are further not aware of any information that shows that the
Sudanese authorities in Khartoum are treating returning southerners in such
a way as to put them at real risk of Article 3 harm".
- In AB the Tribunal had received no evidence
to cast doubt upon the earlier Tribunals findings at AA and concluded:
"There is no evidence to show that at the present time being a
person who originates from southern Sudan is such as to put him or her at
real risk on return to Khartoum."
- The Tribunal in MM having considered the
background information concluded at para. 44:-
(i) We accept the appellant is likely to be questioned at the
airport on his return to Sudan in view of his ethnic and linguistic
characteristics.
(ii) The objective information does not lead us to find that
he is likely to be at risk of persecution or ill-treatment which reaches
to the threshold of Article 3 as the result of the
questioning."
The Background Information
- The CIPU Reports of April 2004 available to the
adjudicator and that of October 2004 shown to us do not cite any evidence
which calls into question the conclusions of the three cases cited above. We
note that the claimants in those cases came variously from Southern Sudan and
Darfur and were not of this appellant's ethnicity as found by the adjudicator.
But the general conclusion from the cases is that there is no real risk of
persecution or treatment contrary to Article 3 for those relocated from areas
of Sudan to Khartoum.
- The Global IDP Project, a group established by the
Norwegian Refugee Council in 1996 produced a report on the 24th
March 2005 entitled "Sudan: Darfur Crisis adds to challenge of mass return to
the South following historic peace deal". Under a heading entitled "Challenges
of Return" the Report says of internally displaced persons currently living in
Khartoum "... the capital hosts nearly 2 million IDPs, most of whom appear to
be willing to go back to their places of origin ... a survey found that three
quarters of IDPs in Khartoum were unemployed, 44% having received no formal
education. Over half of them were under 20 years old".
- It further said:
"Despite an encouraging government initiative to grant land to
IIDPs in Khartoum the actual way this process has been carried out has
raised serious concerns about the government's commitment to the project as
thousands of displaced families have been left homeless. Out of some 2
million IDPs in greater Khartoum the vast majority are living in squatter
areas and about 270,000 are settled in four overcrowded camps … By November
2004 80% of the IDPs were living in improvised shelters and many were forced
to return to the south as a consequence of the demolitions."
- A significant amount of the material submitted to
us related to the position of internally displaced persons in Darfur. The
adjudicator's factual finding that this appellant was at a real risk of
persecution in Darfur has not been challenged. The issue here is, can there be
internal relocation to Khartoum for the appellant. Much of the background
information provided to us on this issue is very generalised. We were for
instance provided with extracts from an Amnesty International paper dated
4th April 2005 entitled "Risks of Refoulement for Sudan's
refugees". Its discussion of the security situation in Khartoum is somewhat
contradictory. It asserts for instance "there is no internal flight
alternative for Darfurians in Khartoum/Central Sudan". It says "Darfurians
from African ethnic groups such as … Massaleit … are a high risk group to
arrests and human rights violations". On the other hand it says:
"..arrests have been carried out mostly of suspected supporters
of opposition groups including Darfuris from African ethnic groups accused
of sympathising with the armed groups".
Further it refers to the existence of ghost houses and the fact that those
who are detained there "are mainly political opposition party members or
supporters".
Further it says:
"It is difficult to keep track of people returned of people
returned to Sudan and we do not have reports of persons returning/deported
to Sudan being arrested. Over the last couple of year's high profile
politically active individuals have travelled to the centre without any
particularly significant instances being reported. However, this is not a
guarantee of safety for others."
- Mr Peter Verney, who gave evidence, said he had
last been in Sudan in 1998. He described himself as being persona non grata in
Sudan having received death threats from the Sudanese government. He cannot
return to Sudan as he cannot protect his friends and relatives there. He was
married to a Sudanese citizen. His evidence was that he had had long exposure
to Sudanese society and is in daily contact with Sudanese.
- He regarded internally displaced persons as being
given very minimal provision. He accepted there was several hundreds of
thousands of internally displaced persons in Khartoum. He thought that the
appellant might be identified by informer systems that operated in camps. He
said that there were reports of arrests and detention of students, lawyers,
merchants and traders but accepted that the appellant did not fit into any of
these categories. He asserted that anybody from the appellant's ethnic
background would have loyalty to the rebels imputed to them. The witnesses
overall approach was that in effect the appellant would be at a relatively
high risk of persecution "like others from African ethnic groups who are
perceived to sympathise with rebel groups".
- The adjudicator accepted this appellant as a
Massaleit from Darfur who had a real risk of persecution in that area of Sudan
because of his ethnicity.
- There is no evidence in the background papers to
support a suggestion that Massaleit from Darfur, or indeed any individual
member of an African tribe from that region would be automatically at risk on
return to Khartoum or as a internally displaced person in or around Khartoum.
- On the 18th May 2004 UNHCR accepted
that "Sudanese of non Arab Darfurian background returning to Sudan faced
heightened risk of scrutiny by the security apparatus … internally displaced
persons from Darfur often faced protection risks including forced relocation
and forced return". But the area around Khartoum has 1.8 million internally
displaced persons of who some hundreds of thousands are from the Darfur region
and most of whom will be from the "African" tribal groups. This appellant was
found to be at risk of persecution in Darfur because of his ethnic origin. To
suggest that this appellant on any return and on relocation to Khartoum faces
a real risk of persecution or indeed a real risk of ill-treatment contrary to
Article 3 of the European Convention on Human Rights is tantamount to
accepting that all and every internally displaced person within Khartoum faces
such a risk. Had that been the case we are satisfied that UNHCR with long and
careful knowledge of the area would have so indicated by now. Internally
displaced persons in the Khartoum area clearly face a number of difficulties.
It may be that for some there may be a real risk arising out of the fact that
the authorities would target them as active sympathisers of armed rebel groups
or as persons connected with opposition political groups. But we cannot accept
that there is a real risk there to this individual appellant. We are conscious
of having to consider this matter on a "case by case" basis as urged by UNHCR.
There is no evidence to suggest that this appellant would be perceived as
involved with armed rebel groups or opposition political groups or that he
would inextricably be driven to the worst circumstances for internally
displaced persons in Khartoum, where ever they may be. The previous decisions
of the IAT, which we accept, do not suggest there is likely to be an automatic
risk of serious harm or ill-treatment contrary to Article 3 in the Khartoum
area.
- Nor do we accept that this appellant will be
singled out at Khartoum airport on any return. His ethnicity may be clear but
it does not follow from that that he will be targeted, arrested and persecuted
or ill-treated.
- We note finally that the adjudicator when
considering this appellant's case agreed that the Massaleit do not suffer at
the hands of the authorities outwith the Darfur area and that there are many
displaced people from Darfur living elsewhere in the Sudan. He also accepted
that by moving elsewhere in the Sudan the appellant's "persecutors have no
interest in him" and such a move "may result in his being safe."
Decision
- For the reasons given we consider the adjudicator
made a material error of law in the manner in which he treated the possibility
of the appellant being internally relocated within Sudan away from the Darfur
area.
- We went on to reconsider the case. We concluded
for the reasons given that internal relocation within Sudan outside the Darfur
area is available for the appellant. We do not consider that the evidence
available leads to the conclusion that the appellant would face a real risk of
persecution or a real risk of ill-treatment contrary to Article 3 of the ECHR
on any relocation to the Khartoum area.
- The following decision is accordingly substituted.
The appeal against the decision dated 19th April 2004 by the
Secretary of State to refuse to vary leave to enter or remain in the United
Kingdom for this appellant is dismissed.
The Hon. Mr Justice Hodge
President
