MB v The Secretary of State for the Home Department

Where the Secretary of State identifies a proposed place of internal relocation, the person seeking international protection retains the legal burden of showing that relocation there would be unreasonable or unduly harsh. The assessment remains holistic. It should weigh all adverse and mitigating circumstances rather than treat the burden of proof as decisive.

The duty of co-operation in the assessment of a protection claim does not transfer or formally share that legal burden. A tribunal must identify the proposed destination, assess safety there, and then decide whether relocation would be unduly harsh in the claimant’s individual circumstances.

The appellant, an Albanian bisexual woman, appealed against the refusal of her protection and human-rights claim. Her account of a risk from her father was accepted, but preserved findings established that the risk did not extend to Shkodër.

The First-tier Tribunal had dismissed the appeal. The Upper Tribunal set that decision aside because the First-tier Tribunal had considered internal relocation without identifying a destination, while preserving findings about the risk and its geographical reach. On remaking, the respondent identified Shkodër as the proposed place of relocation.

The principal issues were whether the appellant or the respondent bore the burden concerning undue harshness, whether relocation to Shkodër was unduly harsh, and whether there were very significant obstacles to her integration for the purposes of the Immigration Rules.

1. Appeal dismissed. The appellant had not shown that internal relocation to Shkodër would be unduly harsh or that she would face an unprotected risk there.

2. The legal burden remained on the appellant to establish entitlement to international protection. Once the respondent had raised internal relocation and identified the proposed location, it was for the appellant to make good the assertion that, despite the general conditions there, it would be unreasonable to relocate. MM v Minister for Justice, Equality and Law Reform, Ireland (Case C-277/11) confirmed a duty of co-operation at the assessment stage, including the production of country material. It did not impose a legal burden on the respondent or create a formal sharing of the burden.

3. Following SSHD v SC (Jamaica) [2017] EWCA Civ 2112, internal relocation required identification of the proposed place, an assessment of whether it was safe, and a value judgment on whether relocation would be reasonable or unduly harsh. The third stage was holistic. A balance-sheet approach, listing factors for and against undue harshness and then explaining the balance, was appropriate.

4. The adverse factors were the appellant’s unfamiliarity with Shkodër, estrangement from her family, past depression, fears arising from previous ill-treatment, and the possibility of suspicion, curiosity or non-physical homophobic abuse. They were outweighed by her ability to obtain work and accommodation, form friendship groups and social networks, seek police assistance if required, and her expected recovery from depression without evidence of recurrence. Even if wider societal attitudes caused her not to be open about her sexuality, she would not be reduced to social isolation or a “half-life”.

5. For the same reasons, the obstacles to integration were not very significant under paragraph 276ADE(1)(vi) of the Immigration Rules. The Tribunal also adopted the preserved proportionality analysis under article 8. The decision was remade by dismissing the appeal; no fee award was made.

• Upper Tribunal (Immigration and Asylum Chamber): On remaking, dismissed the appellant’s appeal against refusal of protection and human-rights claims.
• Upper Tribunal (Immigration and Asylum Chamber): On 2 October 2018, set aside the First-tier Tribunal’s dismissal because internal relocation had been assessed without a specified destination, while preserving findings on risk and its geographical reach.
• First-tier Tribunal: Dismissed the appellant’s appeal in a decision promulgated on 27 July 2017.