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

Country Guidance is a factual precedent, not an immutable rule. It should be followed unless acceptable evidence shows a significant error or that it is no longer correct. New facts may be newly ascertained evidence or events arising after the guidance, if sufficiently weighty. The operative determination controls over an inconsistent headnote and must be read with the findings and evidence supporting it. For internal relocation, a place offering sufficient safety is reasonable unless relocation would be unduly harsh for the individual. That interpretation of Article 8 of the Qualification Directive, adopted in Januzi v SSHD [2006] UKHL 5, did not warrant a reference to the European Court of Justice.

The Court of Appeal heard 16 listed appeals and permission applications from the Asylum and Immigration Tribunal. The common preliminary issues concerned whether the House of Lords decision in AH (Sudan) v SSHD [2007] UKHL 49 had undermined the Country Guidance in HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062, and the meaning of reasonable internal relocation under Article 8 of the Qualification Directive. The court also considered whether a reference to the European Court of Justice was required.

Preliminary points determined. Lord Justice Sedley gave the judgment of the court.

1. Effect of AH and status of Country Guidance. The House of Lords decision in AH (Sudan) v SSHD [2007] UKHL 49 had neither expressly nor impliedly undermined the Country Guidance in HGMO. Country Guidance is a factual precedent. It remains open to revision where sufficiently weighty new facts emerge, whether the facts are newly ascertained or arise after the guidance was issued.
2. Evidence and the operative determination. Evidence from credible sources, including material previously identified in AH (Sudan) v SSHD [2007] EWCA Civ 297, may re-enter the fact-finding process in an individual case where the data justify it. Any apparent discrepancy between the HGMO headnote and paragraph 309(6) had to be resolved by treating the actual determination as controlling. That determination had to be read with the preceding findings and the evidence on which they were based. The guidance therefore required individual consideration of relevant asylum and Article 3 claims.
3. Internal relocation. There was no legal difficulty in treating reasonable internal relocation as relocation to a place offering sufficient safety from persecution unless it would be unduly harsh for the individual concerned. The court adopted the House of Lords’ interpretation in Januzi v SSHD [2006] UKHL 5 of Article 8 paragraph 1 of the Qualification Directive.
4. Reference to the European Court of Justice. The court refused to refer the question whether the House of Lords had erred in interpreting Article 8. The interpretation disclosed no logical difficulty requiring a reference, and a reference would improperly seek to circumvent the House of Lords through the Court of Appeal.
5. All the appeals and applications were to be approached on the footing that internal relocation to a place of sufficient safety is reasonable unless it would be unduly harsh, and that immigration judges should follow HGMO unless acceptable evidence showed a significant error or that the guidance was no longer correct.

1. Court of Appeal (Civil Division) — On 10 June 2008, the court determined two common preliminary points arising in 16 listed appeals and permission applications. Individual final outcomes were not stated.
2. Asylum & Immigration Tribunal — The appeals came from the Tribunal. The individual decisions under appeal were not identified. The court considered the Tribunal’s Country Guidance in HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062.