AH (Sudan) & Ors v Secretary of State for the Home Department

Internal relocation under the Refugee Convention requires a comparison between conditions in the claimant’s habitual residence and those in the proposed safe haven, assessed by reference to the impact on a person with the claimant’s characteristics. Relocation is unavailable where the claimant could not live a relatively normal life by the standards of the country, or where the move would impose traumatic and materially different living conditions. The test is not confined to the standards in Articles 2 and 3 of the Human Rights Convention. Nor can comparison with conditions elsewhere in the country or the world replace the required personal comparison. On that approach, relocating rural Darfuri subsistence farmers to camps or squatter settlements in Khartoum would be unduly harsh.

Three black African Darfuris appealed against decisions of the Asylum and Immigration Tribunal in cases AS/02164/2005 and related cases. The AIT rejected their claims that return to Sudan would expose them to persecution and concluded that they could reasonably relocate from Darfur to Khartoum.

The litigation had previously reached the Court of Appeal in AH (Sudan) and the House of Lords in Januzi and others v Secretary of State for the Home Department [2006] 2 AC 426. The House remitted the cases for proper consideration of the actual conditions facing returnees in Khartoum. The central issues were whether the AIT had erred in rejecting risk on return and whether internal relocation to Khartoum would be unduly harsh.

1. Disposition. The appeals were allowed on the internal-relocation issue. The court set aside the AIT’s conclusions on that issue, substituted its own judgment that relocation to Khartoum would be unduly harsh, and quashed the Secretary of State’s refusals of asylum. The challenges to the AIT’s findings on risk on return failed.
2. Risk on return. The AIT was entitled to reject the appellants’ expert evidence concerning risk to non-Arab Darfuris returned to Khartoum. Its mistaken assumptions about the ACCORD report and its misreading of the UNHCR Position Paper did not invalidate the conclusion, because the AIT had an independent evidential basis for finding an absence of substantiated evidence of mistreatment of returnees. The appellants’ criticisms were principally challenges to factual assessment and evidential weight. They did not show that the AIT had reached a conclusion which was legally unavailable. The AIT was also entitled to rely on the evidence of Dr Schodder and the later UNHCR statement when rejecting the claimed risk to persons eligible for military service, rather than relying solely on BA (Military Service – No Risk) Sudan CG [2006] UKAIT 0006.
3. Internal relocation. Applying the guidance in E and anor v SSHD [2004] QB 531, as affirmed and explained in Januzi [2006] 2 AC 426, the inquiry required:
   • identifying conditions in the place of habitual residence;
   • comparing them with conditions in the proposed safe haven;
   • assessing the impact of those conditions on a person with the claimant’s characteristics; and
   • asking whether the claimant could live a relatively normal life by the standards of the country.
   Traumatic changes of lifestyle, such as moving from rural village life to an urban slum or refugee camp, are relevant. The test is distinct from the Human Rights Convention test and is not limited to whether Articles 2 or 3 standards would be breached. Comparisons with conditions elsewhere in Sudan or elsewhere in the world cannot replace the required comparison with the claimant’s former circumstances.
4. Application. The appellants were subsistence farmers from stable rural communities in Darfur. The evidence showed appalling conditions, insecure shelter, poor health provision, forced relocations and limited economic opportunities in Khartoum camps and squatter settlements. They lacked the resources and experience needed to survive economically in the manner in which they had previously lived. The proposed relocation therefore involved a fundamental alteration in the structure of their lives and was unduly harsh.
5. Country Guidance. In an obiter postscript, the court observed that failure to take account of a Country Guidance decision may constitute an error of law because a material consideration has been ignored. Where the AIT intends to issue authoritative guidance on conditions in a country, it must take special care to make the decision effectively comprehensive. The court reached no conclusion on whether the parts of the AIT’s decision upheld on risk on return were sufficient to constitute valid Country Guidance.

• House of Lords in Januzi and others v Secretary of State for the Home Department [2006] 2 AC 426: held that the earlier proceedings had not adequately analysed the conditions facing returnees in Khartoum and remitted the cases to the AIT.
• Court of Appeal (Civil Division) [2007] EWCA Civ 297: upheld the AIT’s risk-on-return findings but allowed all three appeals on internal relocation, substituted its own judgment and quashed the refusals of asylum.
• Asylum and Immigration Tribunal (AS/02164/2005 et al): rejected the claims on risk on return and internal relocation.
• Earlier Court of Appeal [2005] EWCA Civ 1219: rejected the appellants’ principal arguments that internal relocation was unavailable where the state was the persecutor or where the safe haven lacked adequate civil rights protection.