Another judicial going over for the Asylum and Immigration Tribunal

I’m still catching up on a few developments while I was away over Easter, and have just read the Court of Appeal case of AH (Sudan) and Others v SSHD [2007] EWCA Civ 297, which came out on 4 April 2007.

This is yet another Country Guideline case which has been up and down the court system several times already. I have already commented on how difficult the Asylum and Immigration Tribunal (AIT) is making its own life by pursuing these supposedly definitive decisions, which are regularly overturned by the higher courts. El Presidente Mr Justice Hodge chaired the panel that decided the AIT decision under appeal, called HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062, although one of his colleagues, Dr Hugo Storey, seems to have written and signed off the determination. Dr Storey is in charge of the country guideline case system in the AIT, although no-one outside the AIT knows what that means in practice. And quite a few inside the AIT would probably like to know what it means, too.

The AIT’s decision is LONG. Which, as any appellate lawyer will tell you, means there is simply more rope with which the judge can hang himself. The Court of Appeal starts with some limited criticism of the way in which the Tribunal handled the voluminous evidence but ends up holding that the conclusions on immediate risk on return were probably right, even if the evidence was lightly mauled in reaching those conclusions. The recent Channel 4 News report (also reported in The Guardian) on the severe torture of one failed asylum seeker returned to Darfur from the UK casts considerable doubt on the correctness of these conclusions, but this evidence came after the Court of Appeal hearing - although not before judgment was handed down, it has to be said.

The Court of Appeal then goes on to be severely critical of the AIT’s approach to the legal question of what has become known as ‘internal relocation’. This is a legal device that is widely used in all common law jurisdictions (and was incorporated into the EC Qualification Directive setting out common European legal standards for refugee cases at Article 8 ) to refuse asylum to a person who could reasonably have relocated within his or her own home country to seek safety rather than fleeing abroad. Cases that turn on the possibility of internal relocation involve a great deal of argument over exactly what ‘reasonable’ means, as internal relocation will not be expected if it would be unreasonable in the circumstances for the individual concerned.

It is easier to explain with a concrete example rather than in the abstract. In the context of Sudan, no-one disputes that non-Arab Darfurians are being persecuted in Darfur and would be eligible for refugee status. However, the Home Office says that they can relocate within Sudan to the refugee camps around the capital city, Khartoum. The AIT agreed with the Home Office, saying in essence that (a) no, that didn’t make the Home Office and AIT itself complicit with genocide by aiding the Sudanese government in forcible relocation of a segment of the population of Darfur and (b) the conditions in the refugee camps might be pretty bad, but they weren’t that much worse than the rest of Sudan, so these Sudanese people can be expected to put up with it, hardy souls that they are. It would not be unreasonable to expect non-Arab Darfurians to relocate to the refugee camps around Khartoum, basically.

The Court of Appeal makes it completely clear that the AIT has imposed a ridiculously high test of reasonableness and has totally misunderstood previous jurisprudence of the Court of Appeal and House of Lords in the cases of E and Anor v SSHD [2003] EWCA Civ 1032 and Januzi v SSHD [2006] UKHL 5 respectively. To be fair to the AIT, so did a lot of lawyers. There was a great deal of confusion over the ratio of the decisions, which was simply that in assessing reasonableness the comparison must be between the home area and the proposed area of relocation, not between conditions in the UK and the proposed area of relocation. With respect to the Court of Appeal itself, the situation was also not helped by some quite militant sounding language from the Master of the Rolls in E and Anor.

This latest judgment is refreshing to read, and the Court of Appeal has at last imposed some common sense on what was fast becoming a deeply inhumane, very worrying area of asylum law. The radical shift this case must engender in the AIT’s understanding may well lead to a review of a lot of cases that have been dismissed over the last few years, not only concerning Sudan but also other countries. The AIT has been over-hasty in seeking to limit the numbers of successful appellants.

Lastly, the Court of Appeal then goes on to say a few words about one of my favourite hobby horses (see earlier post), the country guideline case system itself. They point out that they haven’t heard argument on the issue but reiterate the need for the AIT to reach an ‘effectively comprehensive’ decision, quoting from S and Others v SSHD [2002] EWCA Civ 539. The Immigration Advisory Service did an excellent report that drew heavily on S and Others, and their work on country guideline cases (and, I understand, on the AH (Sudan) case itself) deserves praise.