UK - House of Lords, 14 November 2007, Secretary of State for the Home Department v AH (Sudan) & Ors [2007] UKHL 49

Country of Decision:
Country of Applicant:
Date of Decision:
14-11-2007
Citation:
[2007] UKHL 49
Additional Citation:
[2008] 4 All ER 190, [2007] 3 WLR 832, (2007) 151 SJLB 1500, [2008] Imm AR 289, [2008] 1 AC 678, [2008] INLR 100, [2008] AC 678
Court Name:
House of Lords
Relevant Legislative Provisions:
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Headnote: 

The House of Lords test in Januzi (see separate summary) for assessing internal protection was approved.  In assessing whether the proposed area of internal relocation was unreasonable or unduly harsh it was an error of law to require that the circumstances would result in a breach of Art 3 of the ECHR or that the circumstances will be worse than the circumstances experienced by anyone else in that country.

Facts: 

The three applicants were the same three black Africans from Darfur in Sudan, whose appeals had been remitted by the House of Lords in the case of Januzi (see EDAL case summary).  It was accepted that each applicant had a well-founded fear of persecution in Darfur.  However, in reconsidering the remitted appeals, the Tribunal had found that it would not be unduly harsh to expect the applicants to internally relocate to Khartoum (see HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062).  The Court of Appeal overturned the Tribunal’s decision (see AH (Sudan) v Secretary of State for the Home Department [2007] EWCA Civ 297.

Decision & Reasoning: 

The House of Lords approved the test for assessing internal protection set out in Januzi (see separate summary), namely that "[t]he 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."  It held that this test “was one of great generality, excluding from consideration very little other than the standard of rights protection which an applicant would enjoy in the country where refuge is sought”.  It considered that, reading the Tribunal’s determination as a whole, the Court of Appeal had been wrong to find that the Tribunal had applied an incorrect test.

In assessing whether internal relocation was unreasonable or unduly harsh under the Refugee Convention, it was not correct to require that an applicant show that there would be a breach of his rights under Art 3 of the European Convention on Human Rights in the area of proposed internal relocation.  However, “a claimant for asylum could not reasonably or without undue hardship be expected to return to a place where his rights under Art 3 or its equivalent might be infringed”.

It further held that, in assessing whether a proposed area of internal relocation was reasonable or unduly harsh for an applicant it would be an error to require that the applicant’s “circumstances will be worse than the circumstances of anyone else in that country”.  That said, Lord Brown held that “[i]f a significant minority [of persons in the home country] 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…..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 entitled them to refugee status. Compassion alone cannot justify the grant of asylum”.

Outcome: 

The House of Lords allowed the Secretary of State’s appeal against the Court of Appeal’s decision.  It dismissed the applicants’ appeals against the refusal of asylum.

Observations/Comments: 

Please also see the separate case summary of Januzi.

In 2009, the Tribunal changed its country guidance in respect of internal protection and non-Arab Darfuris.  It held in AA (Non-Arab Darfuris – internal relocation) [2009] UKAIT 00056 that “[a]ll non-Arab Darfuris are at risk of persecution in Darfur and cannot reasonably be expected to relocate elsewhere in Sudan”.

Other sources cited: 

Statement of Changes in Immigration Rules (1994) (HC 395) paragraph 343

UNHCR Guidelines on International Protection of 23 July 2003, paras 7 II(a), 28 and 29-30.

G S Goodwin-Gill, The Refugee in International Law, 2nd ed (1996), p 74

H Storey, “The Internal Flight Alternative Test: The Jurisprudence Re-examined", (1998) 10 International Journal of Refugee Law, 499

 

Case Law Cited: 

UK - Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11

UK - R v Secretary of State for the Home Department, Ex p Robinson [1998] QB 929

Australia - Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1998] INLR 1

Canada - Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706

Canada - Thirunavukkarasu v Canada (Minister of Employment and Immigration) (1993) 109 DLR (4th) 682