Hysi v Secretary of State for the Home Department

An internal relocation decision must assess whether relocation would be unreasonable or unduly harsh for the particular asylum seeker. It is insufficient merely to ask whether the person’s protected characteristic would probably be discovered.

Where safety depends on concealing or denying ethnicity, the decision-maker must examine the practical and psychological consequences. Relevant matters include the need for continuing deception, social isolation, separation from family or community, and fear that the truth will emerge. A requirement to modify behaviour to avoid persecutory harm may conflict with the protection afforded by the Refugee Convention. The effect of relocation on a human right bears directly upon reasonableness, although describing the right as fundamental or core does not determine the issue separately.

The appellant, a young Kosovan of mixed Albanian and Roma ethnicity, was accepted as a credible witness who had suffered persecution in his home area. The Adjudicator nevertheless dismissed his asylum appeal because he could relocate elsewhere in Kosovo without his ethnicity being identified. The Immigration Appeal Tribunal upheld that decision, reasoning that he could emphasise his Albanian ethnicity and avoid association with the Roma community.

The appellant appealed on a point of law. The central issue was whether the relocation assessment had adequately considered the harshness of requiring him to conceal or deny his ethnicity, maintain that concealment indefinitely, and live with the risk of discovery.

1. The appeal was allowed. The Adjudicator and the Immigration Appeal Tribunal had not properly or sufficiently assessed whether internal relocation would be unreasonable or unduly harsh for this particular appellant. Their error was one of law.

2. An asylum claim may be refused where an applicant at risk in one part of the country of origin can live safely in another part. Relocation remains unavailable where it would be unreasonable or unduly harsh. The inquiry focuses on the consequences of settling in the proposed place of relocation rather than the applicant’s circumstances while awaiting a decision in the United Kingdom.

3. The Tribunal was entitled, as a matter of fact, to infer that the appellant’s ethnicity would not inevitably be discovered. The Court’s reservations about that inference did not permit appellate interference. The legal assessment nevertheless had to proceed on the demanding assumptions that the appellant would lie about his origins, maintain the lie successfully, and avoid the Roma community, potentially including his mother.

4. The narrow question whether the appellant would be identified as a person of mixed ethnicity did not embrace all relevant considerations. The decision-maker also had to examine the long-term consequences of concealment: repeated deception, the possible need for a socially isolated existence, inability to form relationships based on trust, separation from his ethnic community and mother, and continuing fear of discovery and consequent ill-treatment.

5. A person cannot necessarily be denied asylum merely because persecutory harm could be avoided by significantly modifying behaviour. If relocation would deprive the applicant of a human right, that consequence bears directly upon whether relocation is reasonable. Characterising a right as “core” or “fundamental” does not, however, create a distinct and conclusive test.

6. Under Part 52.10 of the Civil Procedure Rules, the Court exercised the power available under section 103B(4)(c) of the Nationality, Immigration and Asylum Act 2002. The appeal was remitted to the Asylum and Immigration Tribunal for a fresh decision allowing or dismissing the asylum appeal.

1. Court of Appeal (Civil Division): The appeal was allowed. The case was remitted to the Asylum and Immigration Tribunal for a fresh decision.

2. Immigration Appeal Tribunal: The appellant’s appeal was dismissed on 30 April 2004. The Tribunal upheld internal relocation on the basis that his mixed ethnicity was unlikely to be discovered and that concealment would not be unduly harsh.

3. Adjudicator: The asylum appeal was dismissed in a determination promulgated on 22 July 2003. Although the appellant was accepted as a genuine refugee at risk in his home area, the Adjudicator found that he could relocate elsewhere in Kosovo.