AE & Anor v Secretary of State for the Home Department

The Court of Appeal clarified the correct legal approach to internal relocation (the so-called internal flight alternative) under Article 1A(2) of the 1951 Refugee Convention. The court held that, for the purpose of deciding refugee status, the proper test is a comparison between the conditions in the part of the country where persecution is feared and the proposed safe haven; internal relocation is only excluded where it would be "unduly harsh" for the claimant to settle in the safe haven. The court distinguished the assessment for refugee status from separate humanitarian or Human Rights Act 1998 considerations, which may justify leave to remain but do not convert a non-refugee into a refugee.

On the facts, the wife’s post-traumatic stress disorder was not caused by persecution for a Convention reason and therefore was, in the assessment of refugee status, a neutral factor; there was no evidence that adequate treatment or a real risk of rounded-up sons in Colombo made relocation unreasonable. The application to adduce fresh medical evidence was refused because the appeal was on a point of law and had to be decided on the evidence before the Tribunal. The appeal was dismissed.

This is an appeal from a decision of the Immigration Appeal Tribunal (notified 12 November 2002) concerning the correct approach to internal relocation under Article 1A(2) of the 1951 Refugee Convention. The appellants, husband and wife from Sri Lanka (Tamils), had fled the Jaffna area after the husband was detained and ill-treated by the army and after the wife was raped. Both claimed asylum in the United Kingdom. An adjudicator originally allowed their appeals (26 June 2001) on the basis that it would be unduly harsh to expect the family to relocate to Colombo because the wife suffered from post-traumatic stress disorder (PTSD) and the family feared their sons might be rounded up.

The Immigration Appeal Tribunal reversed that decision. The Tribunal criticised the medical report, observed there was no evidence treatment in Colombo would be unavailable and concluded that internal relocation to Colombo was reasonable. The appellants obtained permission to appeal to the Court of Appeal on the proper legal approach to internal relocation.

Nature of the claim/application: an appeal against the Tribunal's refusal of refugee status; the appellants sought recognition as refugees on the basis that it would be unduly harsh to expect internal relocation within Sri Lanka.

Issues framed by the court:

• whether the "unduly harsh" test applied when assessing internal relocation should be understood as part of Article 1A(2) of the Refugee Convention;
• how to apply that test in practice (comparison of the place of persecution with the proposed safe haven, and the relevance of humanitarian or human-rights considerations);
• whether the Tribunal was correct to refuse to admit fresh medical evidence on appeal.

Reasoning and outcome: the court analysed the meaning and purpose of Article 1A(2), distinguishing the refugee-status inquiry (whether a person is "outside the country of his nationality by reason of a well-founded fear of persecution") from broader humanitarian or Human Rights Act considerations. The court explained that the internal relocation inquiry, insofar as it determines refugee status, requires a focused comparison between the persecuted area and the suggested safe haven and that factors unconnected to persecution (for example family ties in the United Kingdom) cannot convert a non-refugee into a refugee. The appeal court refused to admit fresh evidence because the appeal was on a point of law and had to be determined on the Tribunal's materials. Applying the legal test to the facts, the Court concluded the wife's PTSD was not caused by persecution for a Convention reason and therefore did not render Colombo an unreasonable or "unduly harsh" place to live; the appeal was dismissed.

The court noted the importance of distinguishing refugee-status determinations from separate human-rights or humanitarian relief, including under the Human Rights Act 1998, and observed that such separate considerations may nonetheless afford grounds for leave to remain although they do not alter refugee status.

Appeal dismissed. The Court held that, when determining refugee status under Article 1A(2), the internal relocation inquiry requires a comparison between the place of persecution and the proposed safe haven and that relocation is excluded only if it would be "unduly harsh" for the claimant to settle there. Humanitarian or Human Rights Act considerations are separate and cannot be used to expand the Refugee Convention definition. On the facts the wife's psychiatric condition was not attributable to Convention persecution and therefore did not prevent reasonable relocation to Colombo.

Adjudicator allowed the appellants' asylum appeals (determinations promulgated 26 June 2001). The Secretary of State appealed to the Immigration Appeal Tribunal (Collins J, Mr Ockelton and Mr Drabu), which announced its decision on 12 November 2002. The appellants obtained permission to appeal to the Court of Appeal, which delivered judgment on 16 July 2003 ([2003] EWCA Civ 1032).