De Sousa v Secretary of State for the Home Department

In an asylum appeal, a decision-maker must assess the claimant’s evidence against the relevant country material and apply the reasonable-likelihood standard. It is an error of law to treat uncertainty about a relative’s political affiliation or officials’ identity as decisive without considering the surrounding conditions. It is also an error to overlook material evidence of a threat to the claimant herself.

Internal relocation under the Refugee Convention requires a distinct assessment of whether relocation would be unduly harsh. That inquiry must be kept separate from the Article 3 question and must address the claimant’s particular vulnerability, family circumstances and lack of connections. Guidance based on materially different facts cannot, without more, justify safe return.

The appellant, an Angolan national from Cabinda, claimed asylum after her father disappeared and armed men removed her mother and threatened to kill her and her daughter. An adjudicator rejected refugee status but accepted that she could not be returned to Cabinda, while considering relocation elsewhere in Angola. The Immigration Appeal Tribunal upheld the refugee-status findings and concluded that return to Luanda would not reach the persecution or Article 3 threshold. The appeal concerned errors in assessing the evidence, the appellant’s personal risk, internal relocation and the relationship between the Refugee Convention and Article 3.

The appeal was unanimously allowed and the matter was remitted to the Immigration Appeal Tribunal.

1. The adjudicator accepted that the appellant’s father was involved in political activity and that meetings took place at the family home. The country material indicated that political activity in Cabinda was largely associated with FLEC. The adjudicator should therefore have assessed whether it was reasonably likely that the father was involved with FLEC. Treating the appellant as merely assuming this had the effect of placing the evidential burden against her.
2. The same approach was required when assessing the identity of the armed men who removed the appellant’s mother. Their conduct had to be considered against the known conditions in Cabinda and the relationship between FLEC and government forces.
3. The adjudicator also failed to address material evidence that the men had threatened to return and kill the appellant and her daughter if her mother did not tell the truth. That omission was an error of law. The fact that the appellant was not arrested with her mother did not justify the conclusion that she was of no interest to the authorities.
4. Internal relocation under the Refugee Convention raised a different question from the appellant’s Article 3 rights. The relevant question was whether it would be unduly harsh to expect her to relocate to Luanda. The IAT placed too much reliance on [2003] UK IAT 00204, which concerned an adult male with a political background and materially different circumstances. It failed sufficiently to consider that this appellant was a young single mother with two small children, no known connections in Luanda and no surviving parental support.
5. The court referred to [2006] EWCA Civ 47 but declined to elaborate on wider questions concerning internal relocation. The errors meant that the return issue had proceeded on the wrong basis. On the accepted material, the only reasonable conclusion was that the appellant had been a refugee when she left Cabinda. The questions arising from possible return to Luanda, including refugee status and Article 3, required proper reconsideration by the IAT. The formal order was: application allowed.

1. Court of Appeal (Civil Division) — In [2006] EWCA Civ 183, unanimously allowed the appeal and remitted the matter to the Immigration Appeal Tribunal.
2. Immigration Appeal Tribunal — Upheld the adjudicator’s rejection of refugee status and concluded that return to Luanda would not amount to persecution, serious ill-treatment or a breach of Article 3.
3. Adjudicator — Dismissed the asylum appeal, accepted that return to Cabinda was unsafe, but found no well-founded fear of persecution and considered relocation elsewhere in Angola possible.