Januzi v Secretary of State for the Home Department

For Refugee Convention purposes, internal relocation is assessed by comparing conditions in the claimant’s habitual residence with those in the proposed safe haven, having regard to the claimant’s characteristics. Conditions in the asylum country are irrelevant to that assessment. Human-rights and humanitarian considerations applying equally throughout the home country ordinarily do not affect refugee status and should be considered separately under the Human Rights Act or humanitarian principles. A separate Article 8 claim requires comparison of treatment and support in the sending and receiving countries, sufficiently serious harm to physical or moral integrity, a real risk supported by substantial grounds, and an Article 8(2) balance.

The appellant, an ethnic Albanian from Mitrovica in Kosovo, claimed asylum on the basis of persecution by Serb elements in his home area. An adjudicator upheld his Refugee Convention claim. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, finding that relocation to Pristina would not be unduly harsh and would not breach Articles 3 or 8.

On appeal, the Court of Appeal considered the proper approach to internal relocation, the effect of the appellant’s psychiatric evidence, and whether return to Kosovo could engage rights under the Human Rights Convention, particularly Article 8.

Disposition. Lord Justice Buxton gave the leading judgment. May LJ agreed with his reasoning, and Aldous LJ agreed without adding to it. The appeal was allowed in part. The Refugee Convention claim failed, but the human-rights issue was remitted to the Immigration Appeal Tribunal.

1. Internal relocation. The claimant had to establish a well-founded fear of persecution for a Convention reason. If a safe haven existed within the home state, international protection was unnecessary only if it was reasonable to expect relocation there. Following the guidance in AE and FE, the relevant comparison was between conditions in the place of habitual residence and those in the proposed safe haven, considering their impact on a person with the claimant’s characteristics. Conditions in the country of asylum were irrelevant to this Refugee Convention inquiry.
2. Human-rights conditions in the safe haven were ordinarily neutral where they applied throughout the home country. Such matters might support a claim under the Human Rights Convention or humanitarian principles, but did not themselves establish refugee status. The psychiatric-treatment difficulties identified by Dr Barrett existed throughout Kosovo. Accommodation problems were also apparently general. Applying the rigorous approach described in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, relocation to Pristina remained available.
3. Human-rights claim. Article 3 was not seriously advanced, and the extreme health circumstances recognised in D v United Kingdom 24 EHRR 423 were exceptional. Article 8 could nevertheless be engaged by removal where sufficiently serious effects on physical or moral integrity were alleged. The inquiry required the structured comparison identified in Razgar v Secretary of State for the Home Department [2003] EWCA Civ 840, including the treatment and support available in each country, the causal significance of the difference, the seriousness and real risk of harm, and the balance under Article 8(2).
4. The Tribunal had inadequately reasoned its rejection of Dr Barrett’s evidence, had not explained why adequate treatment would be available in Pristina, and had not addressed the Article 8(2) implications or the countervailing requirements of immigration control. The matter was therefore remitted for reconsideration, with limited liberty to adduce further evidence or seek Dr Barrett’s cross-examination.

The Immigration Appeal Tribunal’s order was set aside. The appellant’s costs were payable by the Secretary of State, subject to detailed assessment. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal allowed in part on 24 July 2003. The Immigration Appeal Tribunal’s order of 2 September 2002 was set aside and the human-rights issue was remitted for reconsideration.
• Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal from the adjudicator’s determination, notified on 12 July 2002; the formal order was dated 2 September 2002.
• Adjudicator: Upheld the appellant’s Refugee Convention claim.