House of Lords on internal relocation in Sudan

The Appellate Committee of the House of Lords has allowed the Secretary of State’s appeal against the Court of Appeal’s judgment in Secretary of State for the Home Department v AH (Sudan) and others (FC)  [2007] UKHL 49.  

AH and the other asylum seekers – who have now effectively lost their appeals against the Secretary of State’s decisions to refuse their asylum applications – are all nationals of Sudan who come from the Darfur area in the west of the country.  There they all suffered persecution at the hands of militia who were acting with the support of the Sudanese government.  The Secretary of State’s approach in each case – as it has been generally with asylum applications from people fleeing from Darfur – was to refuse the applications because in his view it was not “unduly harsh” to expect them to relocate elsewhere in the country – specifically to Khartoum, the capital, where they would be safe from persecution.    Central to the issues in the case is the conditions under which internally displaced people have to live in Khartoum.  

The asylum seekers’ appeals have been rebounding between the Asylum and Immigration Tribunal and the UK’s two most senior courts for three years.  They were initially dismissed by immigration judges between October and December of 2004.  The asylum seekers then made applications for reconsideration of these decisions by the Asylum and Immigration Tribunal, which then referred their cases to the Court of Appeal.  This was an unusual step taken because the Tribunal decided that the appeals raised questions of law of such importance that they should be decided by the Court of Appeal.   The Court of Appeal dismissed their appeals in October of 2005 and they then appealed to the House of Lords, where they were heard with an Albanian Kosovar’s appeal called Januzi.   The House of Lords dismissed Januzi’s appeal but remitted the Sudanese asylum seekers’ appeals back to the Asylum and Immigration Tribunal, which dismissed all of the appeals in August of 2006.  They appealed to the Court of Appeal which in its judgment (AH, IG & NM v Secretary of State for the Home Department [2007] EWCA Civ  found that the Tribunal’s determination was legally wrong.

The Court of Appeal found that the Tribunal’s mistake was in its approach to the question of whether or not it was “unduly harsh” to expect the asylum seekers to live in Khartoum where they would be safe from the government supported militia who had persecuted them in Darfur.  They had to ask themselves whether the asylum seekers would be able to lead “a relatively normal life” in the proposed safe area.   The Tribunal had wrongly answered this question by comparing the standard of living of the asylum seekers as it would be in Khartoum with that under which the inhabitants of Sudan lived throughout the country.  Instead they should have compared the conditions under which the asylum seekers had lived in Darfur before they had had to flee due to being persecuted.  This was the test established by the House of Lords’ judgment in Januzi.  The Tribunal had also given the impression that they had directed themselves that in order for the asylum seekers to show that it would be unduly harsh for them to live in Khartoum they would have to show that the conditions there would amount to a breach of their human rights, in particular their non-derogable human rights.  The most prominent non-derogable human right is that protected by Article 3 of the European Convention on Human Rights (the “ECHR”) –i.e:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment    

The House of Lords had no hesitation in holding that if the Tribunal had equated the test of undue harshness with whether or not a person’s rights protected by Article 3 of the ECHR would be breached in Khartoum they had erred in law.   But it was not correct of the Court of Appeal to have said that this is what the Tribunal had in fact done.  The House of Lords acknowledged that sections of the Tribunal’s determination certainly gave the impression that they had indeed equated undue harshness with a likelihood of violation of rights protected by Article 3.  Baroness Hale’s opinion is particularly emphatic about this.  

However in the House of Lords’ view the Tribunal had not erred in law in comparing the circumstances of the asylum seekers with those of other people living in Sudan rather than comparing their circumstances before they were persecuted with those they would have to live under in Khartoum.  The judgment in Januzi did not suggest that either of these approaches was the necessary starting point and both of them were relevant to the proper assessment of undue harshness. Therefore contrary to what the Court of Appeal had held the Tribunal had not erred in law and its determination would be restored.

Many asylum seekers have fled to the UK from Sudan fleeing persecution which the United States’ government as well as international human rights organisations have described as genocide. Following this judgment it is likely that there will be no real bars to their removal to Khartoum.  It will be no consolation to them that the House of Lords’ judgment has however made it completely clear firstly that undue harshness can be established by a person’s not being able to live a relatively normal life in the safe area, when his or her life before fleeing / suffering persecution is compared with that which they will lead in the safe area and secondly that that it is incorrect in law to equate undue harshness with survival at a level which although characterised by deprivation does not amount to a breach of rights protected by Article 3 of the ECHR.