United Kingdom (Secretary of State for the Home Department) v. A.H. et al., (2007) 379 N.R. 114 (HL)

• Case Date: October 04, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 379 N.R. 114 (HL)

U.K. v. A.H. (2007), 379 N.R. 114 (HL)

MLB headnote and full text

Temp. Cite: [2008] N.R. TBEd. JL.002

Secretary of State for the Home Department (appellant) v. AH (Sudan) and others (FC) (respondents)

([2007] UKHL 49)

Indexed As: United Kingdom (Secretary of State for the Home Department) v. A.H. et al.

House of Lords

London, England

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood

November 14, 2007.

Summary:

Three Sudanese nationals, who formerly lived in Darfur and suffered severe persecution in Darfur at the hands of militias acting with government support or connivance, claimed asylum in England. The Secretary of State refused their claims. The refusal was upheld on appeal to an adjudicator or immigration judge. The asylum claimants appealed.

The Court of Appeal, in a decision reported [2005] EWCA Civ 1219, dismissed the appeals. The appeals were heard together with another case, Januzi v. UK, wherein that appeal was dismissed. With the agreement of the Secretary of State, the cases of the asylum claimants from Darfur in the present appeal were referred to the Asylum and Immigration Tribunal for further reconsideration.

The Asylum and Immigration Tribunal (AIT), in a decision reported [2006] UKAIT 00062, reconsidered the cases and dismissed the appeals, thus upholding the Secretary of State's refusal of asylum as refugees. The AIT found that it would not be unreasonable or unduly harsh for the asylum claimants to be returned to and relocated in Khartoum, Sudan. The asylum claimants appealed again.

The Court of Appeal, in a decision reported [2007] EWCA Civ 297, allowed the appeals, set aside the decision of the AIT and quashed the refusals of asylum. The court held that the AIT misdirected itself by applying the wrong legal test to internal relocation, that it was therefore open to the Court of Appeal, applying the right test, to form its own judgment and, doing so, that it would be unreasonable or unduly harsh for the asylum claimants to be returned to and relocated in Khartoum. The Secretary of State appealed, contending that the AIT did not apply the wrong legal test and that the Court of Appeal was not entitled to disturb its judgment on the facts.

The House of Lords allowed the appeal, set aside the Court of Appeal's order and reinstated the AIT's order.

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality (i.e., internal flight alternative or place of relocation) - The House of Lords reiterated the approach for determining when it would be unreasonable or unduly harsh for asylum claimants to be returned to and relocated within their country of habitual residence - See paragraphs 1 to 43 - Lord Bingham of Cornhill summarized the approach stating that "the decision-maker, taking account of all relevant 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 ... There is, as Simon Brown, L.J., aptly observed in Svazas v. Secretary of State for the Home Department, [2002] 1 W.L.R. 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 ... All must depend on a fair assessment of the relevant facts." - See paragraph 5.

Cases Noticed:

Januzi v. United Kingdom (Secretary of State for the Home Department), [2006] 2 A.C. 426; 345 N.R. 345; [2006] UKHL 5, refd to. [paras. 1, 20, 35].

Rasaratnam v. Minister of Employment and Immigration, [1992] 1 F.C. 706; 140 N.R. 138 (F.C.A.), refd to. [para. 4].

Thirunavukkarasu v. Minister of Employment and Immigration (1993), 163 N.R. 232; 109 D.L.R.(4th) 682 (F.C.A.), refd to. [para. 4].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Robinson, [1998] Q.B. 929 (C.A.), refd to. [para. 4].

Karanakaran v. United Kingdom (Secretary of State for the Home Department), [2000] 3 All E.R. 449, refd to. [paras. 4, 41].

Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164; 266 N.R. 380 (F.C.A.), refd to. [para. 4].

E. v. United Kingdom (Secretary of State for the Home Department), [2003] EWCA Civ 1032; [2004] Q.B. 531 (C.A.), refd to. [paras. 4, 38].

Cooke v. United Kingdom (Secretary of State for Social Security), [2001] EWCA Civ 734; [2002] 3 All E.R. 279, refd to. [para. 30].

A. v. Minister for Immigration and Ethnic, [1998] I.N.L.R. 1, refd to. [para. 33].

N. v. United Kingdom (Secretary of State for the Home Department), [2005] 2 A.C. 296; 337 N.R. 347 (H.L.), refd to. [para. 33].

R. v. United Kingdom (Secretary of State for the Home Department), Ex parte Adan, [1999] 1 A.C. 293; 225 N.R. 126 (H.L.), refd to. [para. 33].

R. (Hoxha) v. Special Adjudicator - see B., Re.

B., Re, [2005] 1 W.L.R. 1063; 332 N.R. 295 (H.L.), refd to. [para. 33].

Authors and Works Noticed:

European Union, Council Directive (April 29, 2004), 2004/83/EC, (OJ 2004 L 304.12), generally [para. 4].

Goodwin-Gill, Guy S., The Refugee in International Law (2nd Ed. 1996), p. 74 [para. 4].

Storey, H., The Internal Flight Alternative Test: The Jurisprudence Re-examined (1998), 10 Inter. J. of Refugee L. 499, p. 529 [para. 4].

United Nations High Commissioner for Refugees, Guidelines on International Protection (July 23, 2003), paras. 7 II(a), 28, 29, 30 [para. 4].

United Nations High Commissioner for Refugees, Handbook on Procedure and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979), para. 91 [para. 4].

Counsel:

Rabinder Singh, Q.C., Lisa Giovannetti and Robert Kellar (Instructed by Treasury Solicitors), for the appellants;

Manjit Gill, Q.C., and Abid Mahmood (Instructed by Blakemores), for the respondent, A.H.;

Manjit Gill, Q.C., and Chris Jacobs (Instructed by White Ryland), for the respondent, N.M.;

Manjit Gill, Q.C., and Basharat Ali (Instructed by Aman Solicitors), for the respondent, I.G.;

Tim Eicke (Instructed by Baker and McKenzie), for the intervenor, UNHCR.

Agents:

[Not disclosed.]

This appeal was heard on October 4, 2007, before Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood, of the House of Lords. The decision of the House was delivered on November 14, 2007, when the following opinions were filed:

Lord Bingham of Cornhill - see paragraphs 1 to 16;

Lord Hoffmann - see paragraph 17;

Lord Hope of Craighead - see paragraphs 18 to 19;

Baroness Hale of Richmond - see paragraphs 20 to 31;

Lord Brown of Eaton-under-Heywood - see paragraphs 32 to 43.