Secretary of State for the Home Department (Appellant) v. AH (Sudan) and others (FC) (Respondents)

Internal relocation is available under the Refugee Convention where, after considering all relevant circumstances relating to the claimant and the country of origin, it is reasonable to expect relocation and relocation would not be unduly harsh. The assessment must be individualised, holistic and cumulative.

Undue harshness is a stringent standard, but it is distinct from the higher threshold for inhuman or degrading treatment under article 3 of the European Convention on Human Rights. Conditions in the claimant’s former home and conditions generally prevailing in the country of origin are both relevant. Neither comparison has prescribed priority. An appellate court may displace an expert immigration tribunal’s factual assessment only where a material error of law vitiates its decision.

The respondents were Sudanese nationals from non-Arab tribes in Darfur. Each had suffered severe persecution there. The Secretary of State refused their asylum claims, and adjudicators or immigration judges upheld those refusals.

After earlier appeals and reconsideration following Januzi v Secretary of State for the Home Department [2006] UKHL 5, the Asylum and Immigration Tribunal dismissed the respondents’ appeals in [2006] UKAIT 00062. It found that they would not face persecution in Khartoum and that relocation there would not be unreasonable or unduly harsh.

The Court of Appeal allowed their appeals in [2007] EWCA Civ 297. It held that the Tribunal had wrongly equated undue harshness with article 3 ill-treatment and had used the wrong geographical comparison. The central issues before the House were whether the Tribunal had made either error of law and, consequently, whether the Court of Appeal was entitled to replace the Tribunal’s factual assessment with its own.

1. Appeal allowed unanimously. Lord Bingham delivered the leading speech. Lords Hoffmann, Hope and Brown and Baroness Hale agreed that the Secretary of State’s appeal should be allowed. The Court of Appeal’s order was set aside and the order of the Asylum and Immigration Tribunal reinstated.

2. Per Lord Bingham, the internal-relocation inquiry requires the decision-maker to consider all relevant circumstances relating to the claimant and the country of origin. The question is whether it is reasonable to expect relocation or whether relocation would be unduly harsh. Age, gender, experience, health, skills, family ties and the claimant’s ability to adapt may all be relevant. The assessment is individualised and cumulative: Januzi v Secretary of State for the Home Department [2006] UKHL 5 applied.

3. Per Lord Bingham, with the other Law Lords agreeing, undue harshness is not equivalent to a real risk of treatment contrary to article 3 of the European Convention on Human Rights. An article 3 risk necessarily makes return unreasonable, but the internal-relocation test is distinct and may be satisfied below that high threshold. Reading the Tribunal’s determination as a whole, its separate references to persecution, article 3 ill-treatment and undue hardship showed that it had not applied the erroneous article 3 standard.

4. Per Lord Bingham, conditions in the place of habitual residence and conditions generally prevailing in the country of origin are both relevant. Neither is invariably the starting point or entitled to priority. The weight of each depends on the individual case. The Tribunal had recognised the respondents’ rural backgrounds and their likely difficulty adapting to urban slum conditions. It had therefore not excluded the relevant circumstances of their former lives.

5. Per Lord Bingham, an appellate court may undertake its own factual assessment only where an error of law vitiates the tribunal’s conclusion. No such error occurred, so the Court of Appeal was not entitled to enter the field of factual assessment reserved to the expert Tribunal. Lord Hope and Baroness Hale emphasised that specialist tribunal decisions should be read fairly and as a whole. Baroness Hale acknowledged that parts of the determination caused concern, but ultimately accepted that no clear legal misdirection had been established.

6. Lord Brown, in additional reasoning expressly agreed with by Lord Hope, stressed the rigorous nature of undue harshness. The Refugee Convention is not a general humanitarian measure for equalising living standards. Conditions experienced by a significant minority may be relatively normal within the national context, although all personal circumstances must still be assessed.

7. There was no order for costs, save for assessment of the respondents’ costs on the usual legally aided basis.

1. House of Lords — In Secretary of State for the Home Department v AH (Sudan) and others [2007] UKHL 49, the House unanimously allowed the Secretary of State’s appeal, set aside the Court of Appeal’s order and reinstated the Tribunal’s order.
2. Court of Appeal — In [2007] EWCA Civ 297, the court allowed the respondents’ appeals, set aside the Tribunal’s decision and quashed the asylum refusals.
3. Asylum and Immigration Tribunal — On reconsideration in [2006] UKAIT 00062, the Tribunal dismissed the respondents’ appeals and upheld the refusals of asylum.
4. House of Lords — The respondents’ earlier appeals were heard with Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426. Their cases were referred to the Tribunal for further reconsideration.
5. Court of Appeal — In [2005] EWCA Civ 1219, the court dismissed the respondents’ earlier appeals.
6. Adjudicators and immigration judges — The initial appeals against the Secretary of State’s asylum refusals were dismissed.