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

The House considered whether the Asylum and Immigration Tribunal had applied the correct legal test when deciding that it would not be unduly harsh to expect Sudanese asylum-seekers from Darfur to relocate to Khartoum. The Tribunal had found that the respondents had a well-founded fear of persecution in Darfur but would not be at risk in Khartoum and that return and relocation to Khartoum would not be unreasonable or unduly harsh.

The Court of Appeal held that the Tribunal had applied the wrong test for internal relocation by effectively equating the test of ‘unduly harsh’ with the article 3 European Convention on Human Rights standard and by comparing conditions in the proposed safe haven with conditions in the country as a whole rather than with the place of habitual residence.

The House held that the Tribunal had not made any vitiating error of law: the correct legal approach (as summarised in Januzi) requires a holistic and individualised assessment of whether it is reasonable to expect relocation taking account of all relevant circumstances; comparison may properly include both the place of habitual residence and conditions prevailing generally in the country and the weight to be given to each is a matter of fact for the Tribunal. The Secretary of State's appeal was allowed and the Tribunal's decision reinstated.

The respondents were Sudanese nationals from Darfur who fled severe persecution and claimed asylum in the United Kingdom in late 2004. The Secretary of State refused asylum; that refusal was upheld on initial appeal. The respondents challenged the refusals under section 103A of the Nationality, Immigration and Asylum Act 2002 and their cases were referred under section 103C. The Court of Appeal initially dismissed the appeals in 2005. The cases were then reconsidered by the Asylum and Immigration Tribunal (AIT) in 2006 which dismissed the appeals on the basis that the respondents could be returned and relocated safely to Khartoum. On a subsequent appeal the Court of Appeal allowed the respondents' appeals (2007 EWCA Civ 297), quashed the AIT decisions and ordered grant of asylum. The Secretary of State appealed to the House of Lords.

• Nature of the application: Appeal against the Court of Appeal's allowance of asylum claims; the Secretary of State sought reinstatement of the AIT's decision refusing asylum.
• Issues framed: (i) whether the AIT had applied an incorrect legal test by equating the ‘unduly harsh’ relocation test with Article 3 ECHR standards; (ii) whether the AIT erred in comparing conditions in the safe haven with conditions in the country as a whole rather than with the place of habitual residence; and (iii) whether, on the correct approach, the Tribunal's factual conclusions were open to challenge.
• Court’s reasoning: The House reiterated the legal test for internal relocation as stated in Januzi: a holistic, individualised inquiry into whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh. The House concluded that the AIT, when read as a whole, did not adopt the incorrect narrow test of equating ‘unduly harsh’ with Article 3 nor did it improperly exclude comparison with the applicant’s habitual residence. Both comparisons (habitual residence versus safe haven, and safe haven versus country-wide conditions) can be relevant and the weight to be attached to each is a matter for the Tribunal. Because no legal error vitiating the AIT's decision was shown, the House would not substitute its own factual judgment and therefore allowed the Secretary of State's appeal, reinstating the AIT's refusal of asylum. The House emphasised caution by appellate courts when reviewing expert tribunal findings and recorded concerns about clarity of some parts of the AIT decision.

Appeal allowed. The House held that the Asylum and Immigration Tribunal had not made a vitiating error of law: the correct test for internal relocation is a holistic, case-specific assessment (following Januzi) and both comparisons with the place of habitual residence and with country-wide conditions may be relevant. The Court of Appeal was not entitled to overturn the Tribunal's factual assessment; the Tribunal's refusal of asylum was reinstated.

Asylum refused by the Secretary of State; refusals upheld on initial appeals to adjudicators/immigration judges. Challenges made under section 103A and referred under section 103C of the Nationality, Immigration and Asylum Act 2002. Court of Appeal dismissed appeals on 25 October 2005 ([2005] EWCA Civ 1219). The AIT reheard and dismissed the appeals ([2006] UKAIT 00062). On appeal the Court of Appeal allowed the respondents' appeals ([2007] EWCA Civ 297). The Secretary of State appealed to the House of Lords ([2007] UKHL 49).