Hamid & Ors v Secretary of State for the Home Department

Persecution by, or with the complicity of, state agents in an applicant’s home area does not itself prevent reasonable internal relocation elsewhere in the country of nationality. The decisive question remains whether the applicant has a well-founded fear of persecution in the proposed area of relocation.

For refugee status, the applicable standard is whether relocation would be unduly harsh. Humanitarian conditions and basic civil, political and socio-economic standards are not additional sub-criteria of that asylum test. They must instead be considered distinctly under human rights law or in relation to humanitarian leave.

Three Sudanese asylum seekers from Darfur appealed after their asylum appeals and applications for reconsideration had failed. The adjudicators or immigration judge accepted that each appellant would face persecution in Darfur because of ethnicity, but found that relocation to the Khartoum area would not expose them to persecution or treatment contrary to article 3 and would not be unduly harsh.

Elias J, sitting in the Administrative Court, referred the appeals to the Court of Appeal under section 103C of the Nationality, Immigration and Asylum Act 2002. He identified a question about whether a person persecuted by, or with the complicity of, the state in one region could be required to rely on state protection after internal relocation.

The central issue was whether state involvement in home-area persecution creates a legal bar, presumption or exception preventing internal relocation.

Appeals dismissed. The court held that none of the determinations disclosed an error of law.

1. Article 1A(2) of the Refugee Convention requires an applicant to establish a well-founded fear of persecution on return. The source of persecution in the home area does not alter the ultimate prospective inquiry. Where the evidence establishes no real risk of persecution in the area of proposed relocation, refugee status is not established, even if the applicant was persecuted by or with the complicity of state agents in the home area.

2. It was neither necessary nor desirable to formulate presumptions or exceptions for state-persecution cases. The UNHCR and Michigan Guidelines described the usual position that state persecution is often countrywide. They did not address the displacement issue in these appeals or establish an irrebuttable rule. Article 8 of Council Directive 2004/83/EC was also of little assistance.

3. The applicable internal-relocation standard remained whether it would be unduly harsh to expect the applicant to relocate, following [1998] QB 929 and [2003] EWCA Civ 1032. The court agreed with the latter authority that humanitarian conditions cannot operate as a freestanding legal test for refugee status.

4. The reference in [1998] QB 929 to basic civil, political and socio-economic human-rights norms was not an additional asylum criterion. Since a claimant may advance a human-rights claim, those matters must be assessed separately under the ECHR rather than incorporated into the internal-relocation inquiry.

5. The individual adjudicators had permissibly found no real risk in Khartoum, no article 3 breach, and no undue harshness. The determinations were compatible with the country guidance in [2005] UKAIT 00101. No basis existed to remit any appeal.

• Court of Appeal (Civil Division). The court dismissed the referred appeals: [2005] EWCA Civ 1219.
• Administrative Court (Elias J). Elias J referred the appeals under section 103C of the Nationality, Immigration and Asylum Act 2002, considering that the internal-relocation issue warranted decision by the Court of Appeal.
• Asylum and Immigration Tribunal. Applications for reconsideration under section 103A were refused. The underlying asylum appeals before adjudicators or an immigration judge had also been dismissed.