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

Internal relocation to a safe part of a country is reasonable only if it would not be unduly harsh for the particular claimant. The assessment must be individualised and holistic, taking relevant circumstances cumulatively. Country guidance supplies a factual framework, but it remains open to revision on sufficiently weighty new evidence and does not replace individual assessment.

Where a claimant is likely to live in a camp or squatter area, the tribunal must assess that likely reality, not a merely possible alternative. General guidance about conditions does not answer the effect of bereavement, age, isolation or other personal circumstances. A risk factor may be significant without being decisive.

Five conjoined appeals arose from reconsideration decisions of the Asylum and Immigration Tribunal concerning Sudanese nationals from Darfur. The issues included risk on return to Khartoum, the effect of country guidance concerning villages associated with rebel factions, the likely need to live in a camp or squatter area, sur place political activity, medical treatment, military service, and the position of a wife and child.

The appeals followed earlier adjudicator or Immigration Judge decisions and, in some cases, orders for reconsideration after alleged errors of law. The central questions were whether the Tribunal had applied the country guidance lawfully, whether its findings required remittal, and whether any appeal could be determined in the appellants’ favour.

Disposition. The court allowed the appeals in KH and QA and remitted them for reconsideration. It dismissed the appeals in BK, AA and KA.

1. General approach. Internal relocation under Article 8 of the Qualification Directive is reasonable where the proposed place offers sufficient safety and relocation would not be unduly harsh for the individual. The court followed the approach in Januzi v SSHD [2006] UKHL 5 and rejected a reference to the European Court of Justice concerning the interpretation adopted by the House of Lords. The guidance in HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062 remained applicable, but country guidance is a factual precedent and may be revised on sufficiently weighty new evidence. Immigration judges should follow it unless acceptable evidence shows that it was materially wrong or is no longer correct.
2. KH and QA. In KH, origin from a village associated with rebel leadership was a relevant risk factor but was not necessarily decisive. The AIT had erred by failing to recognise the link between Korma and rebel factions, but the evidence did not compel the conclusion that the appellant was at risk. The appeal was remitted on that limited issue. In QA, the AIT had failed to assess the likely reality that the appellant would live in a camp or squatter area. It also failed to consider the cumulative effect of his age, isolation and the killing of all his close relatives. The appeal was therefore remitted on the established facts.
3. BK and AA. The AIT had not substituted a higher threshold for the country guidance on sur place activities. BK’s activities were assessed as insufficient to attract adverse attention. His medical evidence did not establish the exceptional circumstances required for a breach of Article 3 of the European Convention on Human Rights, although a fresh claim could be made if critical evidence emerged. In AA, the appellant had not proved a real risk that his wife and child would be left without support in a camp or squatter area. The challenge therefore failed.
4. KA. The appellant could not challenge the reconsideration decision on an ethnicity point that had not been advanced below. The court nevertheless observed that a fact-finder should avoid appearing to assume expertise about ethnicity from physical appearance. Ethnicity would not, in any event, be determinative of risk or the harshness of relocation.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 887, KH and QA were allowed and remitted for reconsideration; BK, AA and KA were dismissed.
2. Asylum and Immigration Tribunal: The appeals arose from reconsideration decisions dated 22 December 2006 (KH), 23 March 2007 (QA), 10 January 2007 (BK), 25 June 2007 (AA) and 16 November 2005 (KA).
3. Earlier decisions: The appeals followed original adjudicator or Immigration Judge determinations, with reconsideration ordered in the relevant cases after alleged errors of law.