Januzi (FC) (Appellant) v. Secretary of State for the Home Department (Respondent); Hamid (FC) (Appellant) v. Secretary of State for the Home Department (Respondent); Gaafar (FC) (Appellant) v. Secretary of State for the Home Department (Respondent); Mohammed (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) (Consolidated Appeals)
- Document source:
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Date:
15 February 2006
Januzi (FC) (Appellant) v. Secretary of State for the Home Department (Respondent); Hamid (FC) (Appellant) v. Secretary of State for the Home Department (Respondent); Gaafar (FC) (Appellant) v. Secretary of State for the Home Department (Respondent); Mohammed (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) (Consolidated Appeals)
In this section
The appeals concern four foreign nationals who claim to have suffered or be at risk of suffering from persecution in their home country. In each case recognition as a refugee has been denied on the ground that there is another place (?the place of relocation?), within the country of the appellant?s nationality, where he would have no well-founded fear of persecution. The common issue in the appeals is whether, in judging reasonableness and undue harshness in this context, account should be taken of any disparity between the civil, political and socio- economic human rights which the appellant would enjoy under the leading international human rights conventions and covenants and those which he would enjoy at the place of relocation.
2. Mr Januzi, an Albanian Kosovar, was the victim of ethnic cleansing at Serb hands at his home in Mitrovica in Kosovo. He fled to this country and claimed asylum. This claim was refused on the ground that he could reasonably be expected to relocate to Pristina. He claims, largely for medical reasons associated with his experience of persecution, that it would be unduly harsh to expect him to do so.
Messrs Hamid, Gaafar and Mohammed were black Africans living in Darfur in western Sudan. Hamid and Gaafar were the victims of persecution by marauding Arab bands, which the Government encouraged or connived at and did not restrain. Mohammed, it has been found, would suffer such persecution were he to return to Darfur, whence (like Hamid and Gaafar) he fled. They all claimed asylum on arriving here. In each case, recognition as a refugee has been denied on the ground that the appellant could reasonably (and without undue harshness) be expected to relocate to Khartoum. They all fear that they might be the victims of adverse discriminatory treatment, even persecution, in Khartoum, and they contend that relocation there would be unreasonable and unduly harsh.
3. As in so many other cases the crux of the argument is found in the amended definition of a ?refugee? in article 1A(2) of the Refugee Convention as any person who
?owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.?
The closing words of the definition, applicable to stateless persons, have no immediate application to the appellants, all of whom have a nationality. In each of their cases the relevant persecution is for reasons of ethnicity, which is a reason falling within the Convention.
4. This definition must be read as a whole, in the context of the Convention as a whole, taking account of the Convention?s historical setting and its objects and purposes, to be derived from its articles, and also from the recitals of its preamble which are quoted in extenso in R (European Roma Rights Centre and Others) v Immigration Officer at Prague Airport and Another (United Nations High Commissioner for Refugees intervening) [2004] UKHL 55, [2005] 2 AC 1, para 6. The Convention must be interpreted as an international instrument, not a domestic statute, in accordance with the rules prescribed in the Vienna Convention on the Law of Treaties. As a human rights instrument the Convention should not be given a narrow or restricted interpretation. Nonetheless, the starting point of the construction exercise must be the text of the Convention itself (Adan v Secretary of State for the Home Department [1999] 1 AC 293, 305; Roma Rights case, above, para 18), because it expresses what the parties to it have agreed. The parties to an international convention are not to be treated as having agreed something they did not agree, unless it is clear by necessary implication from the text or from uniform acceptance by states that they would have agreed or have subsequently done so. The court has ?no warrant to give effect to what [states parties] might, or in an ideal world would, have agreed?: Roma Rights case, above, para 18.
5. The definition of ?refugee? quoted above, as it applies to nationals, has three qualifying conditions. The first is, clearly in my opinion, a causative condition which governs all that follows: ?owing to well-founded fear of being persecuted for reasons of race ? political opinion?. The second, indispensable, condition, satisfied by all these appellants, is that the person should be ?outside the country of his nationality?. The third condition contains an alternative: the person must either be ?unable ? to avail himself of the protection? of the country of his nationality, or he must be ?unwilling?, owing to fear of being persecuted for a Convention reason, ?to avail himself of the protection? of the country of his nationality.
7. The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. Although described by a number of different names this relocation alternative has now been recognised for a number of years, at any rate since publication of paragraph 91 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees in 1979:
?91. The fear of being persecuted need not always extend to the whole territory of the refugee?s country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.?
The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.
8. This reasonableness test of internal relocation was readily and widely accepted. It was applied by the Federal Court of Appeal in Canada in Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706, 711 and again in Thirunavukkarasu v Canada (Minister of Employment and Immigration) (1993) 109 DLR (4th) 682. It has been applied in Australia and New Zealand (see paras 9-10 below). It is reflected in rule 343 of the Statement of Changes in Immigration Rules (1994) (HC 395), which provides:
?If there is a part of the country from which the applicant claims to be a refugee in which he would not have a well- founded fear of persecution, and to which it would be reasonable to expect him to go, the application may be refused.?
The ground of refusal would be that the person is not, within the Convention definition, a refugee. It is not in contention between the parties that reasonableness is the test to be applied when deciding whether a relocation alternative is open to an applicant for asylum. But the parties are sharply divided on how the test should be applied, and in particular on whether a person can reasonably be expected to relocate when the level of civil, political and socio-economic human rights in the place of relocation is poor. The appellants submit that he cannot.
10. This New Zealand authority is perhaps the high water mark of the appellants? case. But they gain assistance from a similar line of authority in Australia. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 the Federal Court of Australia cited Professor Hathaway?s observations quoted above with approval: see Black CJ, p 442; Beaumont J, pp 450 - 451. The passage was also cited by Moore J in the same court in Perampalam v Minister for Immigration & Multicultural Affairs [1999] FCA 165; (1999) 84 FCR 274, 288. In Al-Amidi v Minister for Immigration & Multicultural Affairs [2000] FCA 1081; (2000) 177 ALR 506, 510, it was stressed, citing Professor Hathaway, that ?there must be satisfaction of the basic norms of civil, political and socio-economic human rights in that relocation?.
14. The Court of Appeal?s approach in E does not reflect, but nor does it contradict, a consensus of expert international opinion. The Michigan Guidelines treat the condition of compliance with widely recognised international human rights in the place of relocation as one for which ?Good reasons may be advanced?: Hathaway, ?International Refugee Law: The Michigan Guidelines on the Internal Protection Alternative?, 1999, para 21. In a paper prepared in 2001 for the San Remo roundtable, Hathaway and Foster (?Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination?, p 43) point out that ?The minimum acceptable level of legal rights inherent in the notion of ?protection? is certainly open to debate?. The contributors to Refugee Protection in International Law, ed Feller, T?rk and Nicholson, (2003) acknowledge that there are differing approaches to this matter: see, for example, pp 23-28, 405-411.
15. There are, in my opinion, a number of reasons why the broad approach of the Court of Appeal in E must be preferred to the Hathaway/New Zealand rule. First, there is nothing in any article of the Convention from which that rule may by any process of interpretation be derived. The Convention is addressed to the rights in the country of asylum of those recognised as refugees. It is not explicitly directed to
defining the rights in the country of their nationality of claimants for asylum who may be able to relocate within that country in a place where they will have no well-founded fear of persecution.
16. Secondly, acceptance of that rule cannot properly be implied into the Convention. It is of course true, as the appellants emphasise, that the preamble to the Convention invokes the Charter of the United Nations and the Universal Declaration of Human Rights, and seeks to assure refugees the widest possible exercise of the fundamental rights and freedoms affirmed in those documents. But the thrust of the Convention is to ensure the fair and equal treatment of refugees in countries of asylum, so as to provide effective protection against persecution for Convention reasons. It was not directed (persecution apart) to the level of rights prevailing in the country of nationality. The article on refugees in the Universal Declaration was authoritatively criticised in 1948 as ?artificial to the point of flippancy? (see Roma Rights case, above, para 14), and influential though the Declaration has been it lacked any means of enforcement. The International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966, compendiously referred to as ?the International Bill of Rights?, are in truth not such, and had yet to be adopted when the Convention was made.
17. Thirdly, this rule is not expressed in Council Directive 2004/83/EC of 29 April 2004 (OJ L 304.12) on ?minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted?. This is an important instrument, because it is binding on member states of the European Union who could not, consistently with their obligations under the Convention, have bound themselves to observe a standard lower than it required. Article 8 provides in paragraphs 1 and 2:
?Internal protection
1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well- founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.
2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at
the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.?
This imposes a standard significantly lower than the rule would require.
18. Fourthly, as appears from the sources cited above, the rule is not, currently, supported by such uniformity of international practice based on legal obligation and such consensus of professional and academic opinion as would be necessary to establish a rule of customary international law: Roma Rights case, above, para 23.
19. Fifthly, adoption of the rule would give the Convention an effect which is not only unintended but also anomalous in its consequences. Suppose a person is subject to persecution for Convention reasons in the country of his nationality. It is a poor country. Standards of social provision are low. There is a high level of deprivation and want. Respect for human rights is scant. He escapes to a rich country where, if recognised as a refugee, he would enjoy all the rights guaranteed to refugees in that country. He could, with no fear of persecution, live elsewhere in his country of nationality, but would there suffer all the drawbacks of living in a poor and backward country. It would be strange if the accident of persecution were to entitle him to escape, not only from that persecution, but from the deprivation to which his home country is subject. It would, of course, be different if the lack of respect for human rights posed threats to his life or exposed him to the risk of inhuman or degrading treatment or punishment.
20. I would accordingly reject the appellants? challenge to the authority of E and dismiss all four appeals so far as they rest on that ground. It is, however, important, given the immense significance of the decisions they have to make, that decision-makers should have some guidance on the approach to reasonableness and undue harshness in this context. Valuable guidance is found in the UNHCR Guidelines on International Protection of 23 July 2003. In paragraph 7 II(a) the reasonableness analysis is approached by asking ?Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?? and the comment is made: ?If not, it would not be reasonable to expect the person to move there?. In development of this analysis the guidelines address respect for human rights in paragraph 28:
?Respect for human rights
Where respect for basic human rights standards, including in particular non-derogable rights, is clearly problematic, the proposed area cannot be considered a reasonable alternative. This does not mean that the deprivation of any civil, political or socio-economic human right in the proposed area will disqualify it from being an internal flight or relocation alternative. Rather, it requires, from a practical perspective, an assessment of whether the rights that will not be respected or protected are fundamental to the individual, such that the deprivation of those rights would be sufficiently harmful to render the area an unreasonable alternative.?
They then address economic survival in paragraphs 29-30:
?Economic survival
The socio-economic conditions in the proposed area will be relevant in this part of the analysis. If the situation is such that the claimant will be unable to earn a living or to access accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be le d in the context of the country concerned. If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level.
If the person would be denied access to land, resources and protection in the proposed area because he or she does not belong to the dominant clan, tribe, ethnic, religious and/or cultural group, relocation there would not be reasonable. For example, in many parts of Africa, Asia and elsewhere, common ethnic, tribal, religious and/or
cultural factors enable access to land, resources and protection. In such situations, it would not be reasonable to expect someone who does not belong to the dominant group, to take up residence there. A person should also not be required to relocate to areas, such as the slums of an urban area, where they would be required to live in conditions of severe hardship.?
These guidelines are, I think, helpful, concentrating attention as they do on the standards prevailing generally in the country of nationality. Helpful also is a passage on socio-economic factors in Storey, op cit, p 516 (footnotes omitted):
?Bearing in mind the frequency with which decision- makers suspect certain asylum seekers to be simply economic migrants, it is useful to examine the relevance to IFA claims of socio-economic factors. Again, terminology differs widely, but there seems to be broad agreement that if life for the individual claimant in an IFA would involve economic annihilation, utter destitution or existence below a bare subsistence level (Existenzminimum) or deny ?decent means of subsistence? that would be unreasonable. On the other end of the spectrum a simple lowering of living standards or worsening of economic status would not. What must be shown to be lacking is the real possibility to survive economically, given the particular circumstances of the individual concerned (language, knowledge, education, skills, previous stay or employment there, local ties, sex, civil status, age and life experience, family responsibilities, health; available or realisable assets, and so forth). Moreover, in the context of return, the possibility of avoidance of destitution by means of financial assistance from abroad, whether from relatives, friends or even governmental or non-governmental sources, cannot be excluded.?
21. In arguing, on behalf of Messrs Hamid, Gaafar and Mohammed, that internal relocation is never an available option where persecution is by the authorities of the country of nationality, Mr Gill QC gains support from the conclusions of the San Remo experts in 2001. They considered that where the risk of being persecuted emanates from the State (including the national government and its agents) internal
relocation ?is not normally a relevant consideration as it can be presumed that the State is entitled to act throughout the country of origin?. The UNHCR Guidelines of July 2003 similarly observe (para 7 I(b)):
?National authorities are presumed to act throughout the country. If they are the feared persecutors, there is a presumption in principle that an internal flight or relocation alternative is not available.?
There can, however, be no absolute rule and it is, in my opinion, preferable to avoid the language of presumption. The decision-maker, taking account of all re levant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. The source of the persecution giving rise to the claimant?s well-founded fear in his place of ordinary domicile may be agents of the state authorised or directed by the state to persecute; or they may be agents of the state whose persecution is connived at or tolerated by the state, or not restrained by the state; or the persecution may be by those who are not agents of the state, but whom the state does not or cannot control. These sources of persecution may, of course, overlap, and it may on the facts be hard to identify the source of the persecution complained of or feared. There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department [2002] EWCA Civ 74 [2002] 1 WLR 1891, para 55, a spectrum of cases. The decision- maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls. The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state. The converse may also be true. All must depend on a fair assessment of the relevant facts.
The appeal of Mr Januzi was dismissed on the basis that relocation to the Pristina area of Kosovo is a viable option and would not be unduly harsh. The appeals of Messrs Hamid, Gaafar and Mohammed were allowed on partially on the basis that there would be significant risk in relocating or returning to South Sudan, with government assurances being described as "patently unreliable" and with the test applied by Lord Bingham in paras 15-19. Their cases were remitted to the Asylum and Immigration Tribunal.
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