Canaj v Secretary Of State For the Home Department

The internal protection alternative arises only where an asylum seeker has a well-founded fear of persecution in the home area and could instead relocate to another, safe part of the country. It does not arise where the person can safely return to the home area without being uprooted.

Past persecution is probative of future risk but does not determine whether sufficient protection is currently available. The decisive question is whether there is a serious possibility of persecution on return. Future risk may sometimes be avoided by reasonable changes in the asylum seeker’s conduct or living arrangements.

Two Kosovar Albanians sought permission to challenge decisions permitting their return to Kosovo. Canaj’s asylum appeal had succeeded before a special adjudicator, but the Immigration Appeal Tribunal allowed the Secretary of State’s further appeal. Vallaj’s asylum appeal had been dismissed under the accelerated procedure, and Dyson J subsequently dismissed his application for judicial review.

Both applicants could return to areas of Kosovo controlled by UNMIK and KFOR. Vallaj had previously suffered two attacks near his village, while Canaj had no well-founded fear of persecution in his home area.

The principal issues were whether UNMIK and KFOR provided sufficient protection for the purposes of article 1A(2) of the 1951 Convention, how past persecution affected the assessment of future risk, and whether either case engaged the internal protection alternative.

1. Applications for permission to appeal refused unanimously. Simon Brown LJ delivered the judgment, with which Chadwick and Longmore LJJ agreed.

2. Protection provided in practice by UNMIK and KFOR was capable of constituting protection for the purposes of article 1A(2) of the 1951 Convention. Lord Clyde’s guidance in Horvath v Home Secretary [2000] 3 WLR 379, concerning domestic protection against private persecutors in Slovakia, did not establish that Kosovo lacked Convention protection merely because fully functioning judicial, policing and administrative structures were not yet in place. Whether protection was sufficient did not depend on whether the individual had suffered persecution in the past.

3. Past persecution may be strong evidence of future risk, as recognised in Demirkaya v Home Secretary [1999] INLR 441. The critical question nevertheless remained whether there was a serious possibility of persecution on return. Although a major change in national circumstances will commonly be needed to rebut the inference from past persecution, future risk may sometimes be avoided through reasonable changes in the claimant’s own conduct or living arrangements. Vallaj could reasonably cease living in an isolated tent and follow KFOR’s advice without abandoning his livelihood or home area.

4. The internal protection alternative arises only where a claimant has a well-founded fear of persecution in the home area and is expected to move to another, safe part of the country. The alternative area must be safely accessible, and relocation there must be reasonable rather than unduly harsh. The doctrine does not apply merely because some region of the country, with which the claimant has no connection and to which the claimant will not return, would be unsafe.

5. Neither case involved internal relocation. Vallaj needed only modest adjustments to his accommodation and lifestyle near his village. Canaj could return safely to Pristina and to his own village. As neither applicant was being required to uproot himself and move to a different part of the country, no separate inquiry into undue harshness or meaningful domestic protection in an alternative area arose.

• Court of Appeal (Civil Division): Refused both applications for permission to appeal. The court heard the proposed appeals with the applications and gave reasons in [2001] EWCA Civ 782.
• High Court: Dyson J dismissed Vallaj’s substantive application for judicial review of the special adjudicator’s decision and refused permission to appeal.
• Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal against the special adjudicator’s decision in Canaj’s case and subsequently refused Canaj leave to appeal.
• Special adjudicators: Canaj’s asylum appeal was allowed. Vallaj’s asylum appeal was dismissed, and the certificate that his claim was manifestly unfounded was upheld.