AE & Anor v Secretary of State for the Home Department

This is an appeal from a decision of the Immigration Appeal Tribunal (‘the Tribunal’), Collins J (President), Mr Ockelton and Mr Drabu, notified on 12 November 2002. Collins J gave permission to appeal because it raises the question of the correct approach to internal relocation, which is an issue of considerable importance. A number of authorities have considered the correct approach to this issue, and the leading case, R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929, requires to be reconsidered in the light of the Human Rights Act 1998.

The Appellants, who are husband and wife, are nationals of Sri Lanka. They are Tamils. They lived, with their four children, in the Jaffna area in the north of Sri Lanka. In January 1998 the husband was arrested by the army because he had been assisting the LTTE, more commonly known as the Tamil Tigers. He was kept in detention until June, when his wife bought his release by paying a bribe. While in detention he was seriously ill-treated, being punched, kicked, beaten with sand-filled plastic pipes and cut by a bayonet. In September 1998 he reluctantly resumed assisting the LTTE because he feared that otherwise his eldest son, who was by now 16, would be recruited instead. In January 1999 he went into hiding. The army came looking for him on a number of occasions. On one of these they raped his wife.

The family decided to leave Sri Lanka. They went first to Colombo. From there the wife and four children set off for England. They were discovered, trying to make a clandestine entry into the country at Dover on 20 March 1999. They claimed asylum. The husband remained in Colombo for a while until, with the aid of his cousin, he found an agent who made arrangements for him to travel to England. Having arrived here he made a claim for asylum on 6 July 1999.

Both claims for asylum were refused by the Secretary of State. Husband and wife appealed to an adjudicator. On 26 June 2001 his determinations were promulgated. They were in identical terms. He found that the husband had a current well-founded fear of persecution in the north of Sri Lanka. He made no similar finding in relation to the wife. He found that neither the husband nor the wife were reasonably likely to be persecuted if they were removed to Colombo. He found, on the basis of a medical report prepared by Dr Stuart Turner, that the wife was suffering from post-traumatic stress disorder, as a result of her rape.

The adjudicator allowed both appeals for the following reason:

“I find it unduly harsh to expect this family to relocate to Colombo. Two of the sons are now 18 and 17 years old, certainly of an age when they could be rounded up. This will add to the distress which the wife will undoubtedly suffer if she has to go back to Sri Lanka. Dr Turner’s prognosis is that psychotherapy and counselling will be of no avail to her as long she remains in fear and uncertainty about returning to Sri Lanka. The consequences of actually going back while she remains in an acutely traumatized state are too serious to make return a reasonable outcome in this case. The appeals are therefore allowed.”

The Tribunal proceeded on the basis that the adjudicator had found that the husband had a well-founded fear of persecution in the north of Sri Lanka but that the wife had no well-founded fear of persecution in any part of Sri Lanka and was not a refugee. While Mr Husain for the appellants indicated that he would wish to challenge that last finding, no such challenge was intimated in his Grounds of Appeal. Furthermore, we could see no basis upon which that finding could possibly be challenged.

The Tribunal had this to say about Dr Turner’s report:

“Dr Turner recommended that she should undergo treatment. He says:-

‘She seems to be on some form of medication, although this was not available to me. It may be that much more could be done to improve her drug treatment regime’.

There is no evidence that anything had been done to follow up this recommendation or the alternative psychiatric treatment. It is true that Dr Turner thinks that there is a need for security in this country, but the refusal of asylum meant that that was not the position and exceptional leave to remain would not provide security since it would only last for a limited period. We are bound to say that we are not impressed by Dr. Turner’s report. It is based on a relatively short interview and there has been no attempt to discover what treatment she was receiving. We are not ourselves experts and it might be said that we are not in a position to reject the opinions of those who are. But we are accustomed to seeing a large number of psychiatric reports in these cases and the same conclusions are reached in very many of them. We know that PTSD is something which needs careful diagnosis and detailed consideration of individual cases. We know too that the process of seeking to make a new life in the United Kingdom and the circumstances which triggered that process may well lead to depression or worse if obstacles seem to be arising.”

As to the Adjudicator’s reasons for allowing the appeals, the Tribunal commented:

“Nowhere does the adjudicator consider whether the wife could receive the necessary treatment in Colombo in the light of his positive finding that neither of the appellants is reasonably likely to be persecuted in Colombo. The possibility of the sons being rounded up is in the light of the current state of affairs remote. Nor is it clear to us what are the consequence of going back which make it unreasonable to expect the appellants to do so and thus to justify a conclusion that they are refugees.”

Mr Husain applied to place before us additional evidence, obtained after the Tribunal’s determination. This fell into two categories. There were two supplementary psychiatric reports, prepared by Dr Turner. The second was prepared in support of an application that, in order not to exacerbate her psychiatric condition by publication of the fact that she had been raped, we should order that she and her husband should be referred to by their initials. We acceded to this application. The first report was, however, designed to answer the shortcomings identified by the Tribunal. It dealt largely with the wife’s current mental condition. As this appeal is on law alone, we could see no basis upon which this evidence could properly be admitted. The only issue before us is whether the Tribunal erred in law in finding that the appellants were not entitled to asylum as refugees. That issue falls to be determined on the evidence before the Tribunal. The additional evidence of the wife’s current mental condition might found an application that her removal would be contrary to the Human Rights Act, or that she should be granted exceptional leave to remain, but these matters are not before us. Accordingly, we did not admit the additional medical evidence.

The other additional evidence consisted of a report of Dr Anthony Good. This sought to refute the comment of the Tribunal that the possibility of the sons being rounded up if they were removed to Colombo was remote. In adverting to that possibility the adjudicator had been expressing an opinion based upon his own experience. That this possibility would add to the wife’s distress was his own conclusion. It was not based on any evidence.

No challenge was made of this part to the adjudicator’s determination, and there is force in Mr Husain’s contention that the Tribunal should not have differed from it without notice that they were minded to do so to those representing the appellants. In the circumstances, we think it right to approach the Tribunal’s determination on the premise that the wife was suffering from post-traumatic stress disorder which was likely to be aggravated, should the family be removed to Colombo, by apprehension that her sons might be rounded up.

Article 1 of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol (the ‘Refugee Convention’) provides:

“(A)

For the purpose of the present Convention, the term ‘refugee’ shall apply to any person who:

…

(2)

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 issue is the manner in which this definition falls to be applied where an asylum seeker has a well-founded fear of persecution in the part of his country where he habitually resides, but where there is another part of the country where he would not have such fear. This is an issue which arises quite frequently in the case of Tamils who live in the north of Sri Lanka. In that part of the country government troops are in conflict with the LTTE and treat brutally Tamils suspected of assisting that rebel movement, which in some circumstances gives rise, in the case of such suspects, to a well-founded fear of persecution. Tamils who live in, or who move to, Colombo are not, in general, subject to such danger or such fear.

The Tribunal proceeded on the basis that an asylum seeker would not be entitled to refugee status if he could reasonably be expected to move, or ‘relocate’ to a part of his home country where he was not subject to the risk of persecution. The test of whether or not he could reasonably be expected to relocate fell to be determined by asking whether it would be ‘unduly harsh’ to expect him to do so. In applying that test the Tribunal proceeded on the basis that the position of the family fell to be treated as a unit.

Whether the ‘unduly harsh’ test is the correct test and, if so, how it should be applied are the issues of law with which we have to grapple. The manner in which the Tribunal applied the test appears from the concluding section of their determination:

“The absence of proper medical facilities to deal with a particular individual’s problems will not normally be determinative unless his right to life is thereby put in jeopardy. If proper facilities are available, a person’s medical condition however serious cannot make him a refugee. In Antonipillai (Appeal No: 16588 notified on 12.5.1998) at pp.32-33 of the determination the Tribunal said this:-

‘This is the first occasion where we have had to consider whether or not a medical or mental condition is an aspect which has to be considered when considering whether it would be unduly harsh for a person to seek internal flight. It is our view, and one to which we have given considerable thought, that within the context of the expression ‘unduly harsh’ it would be unduly harsh to insist on the internal flight or return to Colombo, as in the instant cases, where the option being exercised is a case where a person is suffering from a terminal illness or suffering from physical or mental disability of such a nature as to render constant or almost constant attention of a medical or nursing nature, or whether, in the long term, such mental or physical condition is such as to preclude the person from obtaining employment, accommodation and generally acclimatising to the social conditions of the area to which internal flight is sought’.

Far from being unduly restrictive, we think that what is there said is too wide. It is only if adequate facilities are not available that IR may be said to be unduly harsh. There may be compassionate reasons for not returning but not on the basis that the individual is a refugee.

We have already recited the facts of this case. There is no evidence that treatment for depression or PTSD is unavailable in Sri Lanka. There is no real risk of persecution or indeed that the sons will be rounded up. We do not regard Dr Turner’s report as supporting the adjudicator’s conclusion that the distress of the wife at the prospect of return will make it unduly harsh for the husband to be returned since there is no real impediment to his wife and family returning with him.”

Mr Husain submitted that the approach of the Tribunal to what was ‘unduly harsh’ was too severe. The adjudicator had been correct to find that the wife’s psychiatric condition rendered it unduly harsh to remove the family to Colombo. He supported this submission by an argument which focussed on the second part of the definition of a refugee in Article 1A(2) of the Refugee Convention. We can summarise that argument as follows: The ‘unduly harsh’ test is the means of determining whether an asylum seeker is ‘unable to avail himself of the protection of’ the country of his nationality. The protection in question is not simply protection against persecution. It is a level of protection that secures, for the person relocating, those benefits which Member States have agreed to secure for refugees under Articles 2 to 30 of the Refugee Convention.

For the Secretary of State, Mr Kovats challenged this submission. He argued that the Refugee Convention affords protection in limited circumstances where a person faces a real risk of serious ill-treatment on a discriminatory basis. The protection referred to in the latter part of Article 1A(2) is protection against such ill-treatment. More generally, he argued that the ‘unduly harsh’ test was, as the Tribunal held, a rigorous test. It was designed to ensure that refugee status was not denied on the ground of the theoretical possibility of relocation when, in practice, the circumstances were such that it was not realistic to expect the asylum seeker to move to the new location.

In applying the ‘unduly harsh’ test the Tribunal was acting in accordance with guidance to be derived from case precedent. There are two possible objects for asking the question whether it would be ‘unduly harsh’ to require an asylum seeker who has fled the risk of persecution in one part of his home country to return to a part to which this risk does not extend: (1) as part of the exercise of determining whether the asylum seeker falls within the definition of a refugee under Article 1 of the Refugee Convention; (2) in order to decide whether, as a matter of humanity, an asylum seeker who has fled from his home country in such circumstances should be required to return there. The nature of the ‘unduly harsh’ test will vary according to the object of asking the question. It is thus necessary, when considering the authorities, to consider the purpose for which the ‘unduly harsh’ test has been applied.

There is no reason to believe that those who agreed the Refugee Convention in 1951 gave any thought to the possibility that a well-founded fear of persecution might exist in relation to one part of a state but not to another part. In Canaj v Secretary of State for the Home Department [2001] EWCA Civ 782; [2001] INLR 342 at p.349 Simon Brown LJ suggested that the concept of ‘internal flight alternative’, which we prefer to describe as ‘internal relocation’, appears to have originated in paragraph 91 of the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status, which was first published in 1979. This read as follows:

“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.”

We would make some comments about this paragraph before turning to consider asylum cases where relocation has been in issue. Paragraph 91 appears under the heading “is outside the country of his nationality”. It is thus addressing the first part of the definition of a refugee in Article 1A(2) of the Refugee Convention “owing to a 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”. This definition involves both a subjective and on objective element. The refugee must be outside the country of his nationality owing to a fear of persecution for a Convention reason and that fear must be well-founded. The possibility of internal relocation has relevance to both elements.

So far as the first element is concerned, the question under consideration is the reason why the individual is outside the country of his nationality, not why he is outside his customary place of residence within that country. If there is a part of his country to which he could relocate where he would not fear persecution (we shall describe this for ease of reference as ‘a safe haven’), the reason for leaving his country will not simply be fear of persecution. It will include whatever reasons he may have had for preferring to seek refuge in a different country rather than in the safe haven.

So far as the second element is concerned, the question is whether the fear of persecution if he remains in the country is well-founded. This involves considering not merely the part of the country in which he has habitually resided, but any other part of the country in which he can reasonably be expected to reside.

Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there. Living conditions in the safe haven may be attendant with dangers or vicissitudes which pose a threat which is as great or greater than the risk of persecution in the place of habitual residence. One cannot reasonably expect a city dweller to go to live in a desert in order to escape the risk of persecution. Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is ‘outside the country of his nationality by reason of a well-founded fear of persecution’.

If this approach is adopted to the possibility of internal relocation, the nature of the test of whether an asylum seeker could reasonably have been expected to have moved to a safe haven is clear. It involves a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker. What the test will not involve is a comparison between the conditions prevailing in the safe haven and those prevailing in the country in which asylum is sought.

In many of the cases of internal relocation, and in the writings on the topic, one finds support for a test of the nature that we have described above. Sometimes it is suggested that it is helpful to ask whether living conditions in the safe haven are so unattractive that the asylum seeker would be likely to be driven back to the place where persecution is feared. The authorities do not, however, give a clear or logical picture of the test to be applied when deciding whether internal relocation is a reasonable option. We shall at this point seek to identify the causes of the confusion.

The wording of paragraph 91 focuses on the position prevailing at the time that the asylum seeker left his home country. It asks ‘could he reasonably have been expected’ to move to a safe haven within that country. But the test of refugee status falls to be applied at the time that the application for asylum is considered – see Adan v Secretary of State [1999] 1AC 293. The question is whether, at that time, the asylum seeker is ‘by reason of a well-founded fear of persecution outside the country of his nationality’. When the possibility of internal relocation is considered in the context of that question, the test becomes ‘would it be reasonable to expect him to move to the safe haven now?’ That test readily transposes into ‘would it be reasonable to send him back to the safe haven?’ or ‘would it be unduly harsh to send him back to the safe haven?’

If this question is asked simply to determine whether he falls within the definition of a refugee under Article 1(A)(2), the answer should depend upon the same comparison between conditions in the place where persecution is feared and conditions in the safe haven. Once an asylum seeker is in this country, however, there may be a number of reasons why it would be unreasonable or harsh to send him back to his home country which have nothing at all to do with the question of whether he has a well-founded fear of persecution for a Convention reason. Asylum seekers who have not established refugee status have frequently been granted exceptional leave to remain because to remove them would infringe their rights under the Human Rights Convention or for other humanitarian reasons.

When considering whether it would be unreasonable, or unduly harsh, to send an asylum seeker back to a safe haven within his home country, courts and jurists have tended to apply a test which involves not merely the considerations which bear on whether he enjoys the status of a refugee but also the wider considerations described above. The UNHCR has commended such an approach. The result has been that it is difficult to identify the extent to which decisions constitute rulings on the refugee status of asylum seekers as opposed to applications of wider humanitarian considerations.

This confusion has been fostered by problems that have been experienced in identifying the nature and effect of the second limb of the definition of a refugee in Article 1A(2) – “and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. If the fear of persecution in the asylum seeker’s home country is well-founded, it would seem axiomatic that that country is unable to afford adequate protection against such persecution. More particularly, where the persecution feared is persecution by agents of the state, the concept of protection by the state against that persecution makes little sense.

This problem was considered by Lord Lloyd of Berwick in Adan v Home Secretary at pp.305-6. He concluded that for refugees subject to state persecution the words of the second limb served no purpose, but that they made sense in relation to those refugees who feared persecution from factions within the state. Lord Lloyd identified two tests, one for each limb, namely the ‘fear test’ and the ‘protection test’. This analysis caused problems for the Court of Appeal in Horvath v Home Secretary[2000] INLR 15. Stuart-Smith LJ at p.23 considered that Lord Lloyd had adumbrated two separate and distinct tests. The majority of the Court considered that the two tests were aspects of a holistic approach. Hale LJ rationalised the matter at p.52. Speaking of state protection, she said:

“If it is sufficient the applicant’s fear of persecution by others will not be ‘well founded’; if it is insufficient, it may turn the acts of others into persecution for a Convention reason; in particular it may supply the discriminatory element in the persecution meted out by others; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of his home state.”

In the leading speech in the House of Lords [2001] AC 489 at p.497 Lord Hope of Craighead preferred the majority view:

“I agree with the view of the majority. For my part, I would regard the analysis of the article which was provided by Lord Lloyd in the Adan case (1999) 1 AC 293, 304 as being both helpful and instructive. It is an important reminder that there are indeed two tests that require to be satisfied. A person may satisfy the fear test because he has well-founded fear of being persecuted, but yet may not be a ‘refugee’ within the meaning of the article because he is unable to satisfy the protection test. But it seems to me that the two tests are nevertheless linked to each other by the concepts which are to be found by looking to the purposes of the Convention. The surrogacy principle which underlies the issue of state protection is at the root of the whole matter. There is no inconsistency between the separation of the definition into two different tests and the fact that each test is founded upon the same principle. I consider that it has a part to play in the application of both tests to the evidence.

I would hold therefore that, in the context of an allegation of persecution by non-state agents, the word ‘persecution’ implies a failure by the state to make protection available against the ill-treatment or violence which the person suffers at the hands of his persecutors. In a case where the allegation is of persecution by the state or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community. But in the case of an allegation of persecution by non-state agents the failure of the state to provide the protection is nevertheless an essential element. It provides the bridge between persecution by the state and persecution by non-state agents which is necessary in the interests of the consistency of the whole scheme.”

Lord Hope’s speech, and the subsequent speech of Lord Lloyd himself, demonstrate that it is possible, although not entirely easy, to make sense of the two limbs of Article 1(A)(2) in the context of failure by the state to protect against persecution by non-state agents. It would be surprising, however, having particular regard to the fact that some Member States do not consider that such persecution falls within the Convention at all, if those who drafted it had included the two limbs in order to cater for the failure of the state to protect against persecution by non-state agents.

It seems at least possible that those who drafted the Convention included the second limb of Article 1A(2) for a quite different reason and that the protection referred to was protection offered to those outside the national state by the diplomatic or consular agents of the state in question – see Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14, citing Kalin, “Non-State Agents of Persecution and the Inability of the State to Protect” (2001) 15 Georgetown Immigration Law Journal 415 at p.426 and “The Meaning of Protection in the Refugee Definition” (2001) 12 International Journal of Refugee Law 548.

If this was the purpose of the second limb, subsequent courts in this country have lost sight of it. The position was summarised in the UNHCR publication of April 2001 on Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees:

“35.

The meaning of this element of the definition has recently been much debated. According to one view, it refers to protection by the state apparatus inside the country of origin, and forms an indispensable part of the test for refugee status, on an equal footing with the well-founded fear of persecution test. According to others, this element of the definition refers only to diplomatic or consular protection available to citizens who are outside the country of origin. Textual analysis, considering the placement of this element, at the end of the definition and following directly from and in a sense modifying the phrase ‘is outside his country of nationality’, together with the existence of a different test for stateless persons, suggests that the intended meaning at the time of drafting and adoption was indeed external protection. Historical analysis leads to the same conclusion. Unwillingness to avail oneself of this external protection is understood to mean unwillingness to expose oneself to the possibility of being returned to the country of nationality where the feared persecution could occur.

36.

Despite this apparent clarity, there now exists jurisprudence that has attributed considerable importance in refugee status determination to the availability of state protection inside the country of origin, in line with the first view described above. This somewhat extended meaning may be, and has been, seen as an additional - though not necessary - argument in favour of the applicability of the Convention to those threatened by non-state agents of persecution”

Whatever the original intentions of those who drafted the Convention, we must give effect to such authoritative interpretations as have been given to the second limb of Article 1A(2). What is, we believe, clear from the passage in the speech of Lord Hope that we have quoted, and from the following passage at p.499, is that the “protection” referred to in the second limb is protection against acts of violence or ill-treatment that amount to persecution:

“To sum up therefore on this issue, I consider that the obligation to afford refugee status arises only if the person’s own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consist of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection.”

When we turn to look at the cases on internal relocation we shall find that, in some of them, the courts have accorded a different meaning to “protection”.

Before turning to the cases, it is helpful to quote observations of two distinguished authors on the topic. Professor Hathaway in his book ‘The Law of Refugee Status’ published in 1991, states at p.134:

“The logic of the internal protection principle must, however, be recognized to flow from the absence of a need for asylum abroad. It should be restricted in its application to persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized.”

Professor Goodwin-Gill, in the second edition of ‘The Refugee in International Law’, published in 1996, states at p.74:

“There is also no reason in principle why the fear of persecution should relate to the whole of the asylum seeker’s country of origin; for various reasons, it may be unreasonable to expect the asylum seeker to move internally, rather than to cross an international frontier. Different jurisdictions have thus held that the relevant criterion is the availability in fact of protection in another region, and the chance of maintaining some sort of social and economic existence.”

We make the following observation on these passages. The failure to provide (as opposed to a discriminatory denial of) the ‘basic norms of civil, political, and socio-economic human rights’ does not constitute persecution under the Refugee Convention. An asylum seeker who has no well-founded fear of persecution but has left his home country because he does not there enjoy those rights, will not be entitled to refugee status. When considering whether it is reasonable for an asylum seeker to relocate in a safe haven, in the sole context of considering whether he enjoys refugee status, we cannot see how the fact that he will not there enjoy the basic norms of civil, political and socio-economic human rights will normally be relevant. If that is the position in the safe haven, it is likely to be the position throughout the country. In such circumstances it will be a neutral factor when considering whether it is reasonable for him to move from the place where persecution is feared to the safe haven. States may choose to permit to remain, rather than to send home, those whose countries do not afford these rights. If they do so, it seems to us that the reason should be recognised as humanity or, if it be the case, the obligations of the Human Rights Convention and not the obligations of the Refugee Convention.

Does binding authority permit this result in our jurisdiction? Before turning to the English cases we propose to draw attention to a number of Commonwealth authorities, some of which are referred to in the English cases.

In Thirunavukkkarasu v MEI (1994) 163 NR 232, in giving the judgment of the Canadian Federal Court of Appeal, Linden JA said this about internal location, described by him as IFA (Internal Flight Alternative):

“An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety. Similarly, claimants should not be compelled to hide out in an isolated region of their country, like a cave in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable in these later cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee.

The next year, sitting in the Federal Court in Kanagaratnam v MEI (1994) 28 Imm.LR (2d) 22 Rothstein J drew a distinction between the task of the Refugee Board, which was to determine whether claimants before it satisfied the definition of “Convention refugee”, and the procedure of officials under the Immigration Act, which had regard to humanitarian and compassionate factors.

The Refugee Board subsequently had to consider whether an elderly Tamil who had fled from Sri Lanka had an IFA in Colombo, so that he did not qualify as a refugee. He was living in Canada with his son, his daughter-in-law, and his five grandchildren, upon whom he depended and to whom he was very close. The Board found that there were in Colombo homes for the elderly where he would be provided with food, shelter and medical care. It went on to observe:

“The situation will not be perfect for the applicant. He would like to be permanently reunited with his son’s family here in Canada. However, as humanitarian and compassionate grounds are an Immigration Canada matter and not within the mandate of the Refugee Division, the panel finds that it cannot view the IFA situation for the claimant to be unduly harsh or unreasonable in all the circumstances.”

In Ramanathan v Canada (1 September 1998 – Docket: IMM-5091-97) Hugessen J, sitting in the Federal Court, held that the Board had erred in excluding humanitarian considerations altogether as:

“A test of whether an IFA is unreasonable or unduly harsh in all the circumstances is bound to involve the consideration of some factors, at least, which will undoubtedly be the same sort of considerations that are taken into account in humanitarian and compassionate relief.”

Hugessen J went on to observe:

“…it seems to me that the factor of requiring an elderly, dependant and unwell person to live alone in a governmental or publicly supported home with governmental or publicly supported health and other social services provided to him when there is an alternative where he is presently living where he has the emotional and family support gained from close members of his family is something which should be considered when inquiring as to whether it would be unduly harsh to send that person from the latter situation to the former.”

Mr Husain relied on this decision as supporting his approach to the test of what is ‘unreasonable’ or ‘unduly harsh’. It does, but, with respect to Hugessen J, it does not seem to us that consideration of an applicant’s family links in the country of refuge can have any bearing upon the question of whether the applicant has refugee status. They may, of course, be very relevant to the altogether separate question of whether humanitarian principles, or the right to respect for family life, should result in the applicant being granted permission to remain.

In Butler v Attorney-General [1999] NZAR 205 the New Zealand Court of Appeal commented on the approach adopted by the Refugee Status Appeals Authority to the test of ‘reasonableness’ in relocation cases. Giving the judgment of the Court, Keith J at p.217 observed that the test was not a stand alone test authorising an unconfined inquiry into all the social, economic and political circumstances of the application including the circumstances of members of the family. The test was sharply different from the humanitarian tests provided for in the Immigration Act 1987. The refugee inquiry was narrowly focused on the persecution and protection of the particular claimant. He continued at p.218:

“Rather than being seen as free standing (as more recent decisions of the Authority appear to suggest), the reasonableness test must be related to the primary obligation of the country of nationality to protect the claimant. To repeat what Professor Hathaway said in the passage relating to relocation quoted earlier, meaningful national state protection which can be genuinely accessed requires provision of basic norms of civil, political and socio-economic rights, to the same effect Linden JA in the Canadian case cited above, (1993) 109 DLR (4th) 682,688, stresses that it is not a matter of a claimant’s convenience or of the attractiveness of the place of relocation. More must be shown. The reasonableness element must be tied back to the definition of ‘refugee’ set out in the Convention and to the Convention’s purposes of original protection or surrogate protection for the avoidance of persecution. The relocation element is inherent in the definition; it is not distinct. The question is whether, having regard to those purposes, it is unreasonable in a relocation case to require claimants to avail themselves of the available protection of the country of nationality.”

In Refugee Appeal No 71684/99 The Refugee Status Appeals Authority of New Zealand, chaired by Mr PG Haines QC, gave a decision on internal relocation which purported to set out the position under New Zealand law. The conclusions of the Authority appear in the following passages of its decision at pp.182-4:

“We are of the view that meaningful protection means more than the mere absence, in the proposed site of internal protection, of the risk of persecution (for a Convention reason) faced in the original locality. Meaningful domestic protection is not genuinely accessed where, in the proposed site of internal protection, the individual is exposed to a risk of other forms of serious harm, even if not rising to the level of persecution. Accordingly, the internal protection inquiry mandates a second step which is an inquiry whether, in the proposed site, there are other risks which either amount to, or are tantamount to, a risk of persecution. This would include factors which have the potential of forcing the refugee claimant back to the original area of persecution.

But there is a third step to the inquiry. The view that we take is that the notion of meaningful domestic protection implies not just the absence of a risk of harm, it requires also, as Professor Hathaway has pointed out, the provision of basic norms of civil, political and socio-economic rights. These basic norms are to be found in the test of the Refugee Convention itself and in particular in Arts 2-33.

….

In essence, our reasoning is as follows. Because under New Zealand law the issue of internal protection does not arise unless and until a determination is made that the refugee claimant holds a well-founded fear of persecution for the Convention reason, the inquiry into internal protection is really an inquiry into whether a person who satisfies the Refugee Convention and who is prima facie a refugee - at least in relation to an identified part of the country of origin - should lose that status by the application of the internal protection principle. There is considerable force to the logic that that putative refugee status should only be lost if the individual can access in his or her own country of origin the same level of protection that he or she would be entitled to under the Refugee Convention in one of the State parties to the Convention. Clearly some State parties will accord to refugees a greater range of human rights and freedoms than the minimal standards prescribed by the Refugee Convention. Other States will barely be able to satisfy the Convention standards. But the Refugee Convention itself sets the minimum standard of human rights which the international community has agreed should be accorded to individuals who meet the Refugee Convention. The ‘loss’ of refugee status by the application of the internal protection principle should only occur where, in the site of the internal protection, this minimum standard is met.”

Mr Husain commended this decision to us. The approach adopted treats the asylum seeker as a refugee from that part of his home state where he has a well-founded fear of persecution, accords him putative refugee status and holds it unreasonable to send him to another part of his country unless he will there enjoy the rights that Member States are obliged to accord to refugees. We cannot reconcile this with the requirements of the Refugee Convention. The Convention lays down the standards to be observed by Member States where asylum is granted to refugees. It does not require Member States to grant asylum to those who do not enjoy such standards in their own countries.

The background to the English cases is the introduction in 1993 of an Immigration Rule, which has survived as HC 395 paragraph 343, which reflects paragraph 91 of the UNHCR Handbook. It provides, in relation to an application for asylum:

“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.”

This provision placed the Immigration Appeal Tribunal in a dilemma. The jurisdiction of the appellate authorities in asylum cases was, at the material time, derived exclusively from section 8 of the Asylum and Immigration Act 1993. Section 8(1) provided:

“A person who is refused leave to enter the United Kingdom under the [Immigration Act 1971] may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom’s obligations under the [Refugee Convention]”.

Sections 8(2)-(4) provided for a right of appeal in respect of other administrative decisions on the ground that removal would be in breach of the United Kingdom’s obligations under the Refugee Convention.

Applicants for asylum whose applications were refused on the ground that it was reasonable to expect them to go to a part of their home country where they did not have a well-founded fear of persecution sought to appeal against that finding. In some cases the Tribunal ruled that the appellate authorities had no jurisdiction in that the question of whether removal to an alternative location in the home State would be reasonable was not determinative of obligations under the Refugee Convention.

In Robinson the appellant was a young Tamil who, in April 1993, had fled from Jaffna to Colombo, where he had been forced to join the LTTE and was, in consequence, at risk of violence at the hands of government forces. For two weeks he stayed with a friend, paying him from proceeds of some of his mother’s jewellery. Then the President of Sri Lanka was assassinated by Tamil militants, which led to security measures against young Tamils being stepped up, not only in Jaffna, but also in Colombo. The appellant was detained by security forces on suspicion of being a member of the LTTE, held for five days, beaten up and then released without charge. He then went into hiding, staying at a number of short-term addresses. He sold the rest of his mother’s jewellery and gave the proceeds to an agent, who arranged for him to travel to England the following month, where he claimed asylum.

The claim for asylum was refused, and the appellant appealed to a special adjudicator. He held that he could not reasonably be expected to go back to an area controlled by the LTTE, but that Colombo was not such an area. The appellant could safely return to Colombo, and therefore had not demonstrated a well-founded fear of persecution. The special adjudicator urged the Secretary of State to grant the appellant exceptional leave to remain as he had relatives living in England, but none in Colombo.

The appellant applied for permission to appeal to the Immigration Appeal Tribunal on the grounds that the special adjudicator had been wrong to find that the appellant would not be at risk if returned to Colombo. Permission to appeal was refused. He sought permission to seek judicial review of this decision, and this was refused. He appealed to the Court of Appeal, by what was then described as a renewed application for leave to apply for judicial review. There, for the first time, he raised the argument that, even if he had no well-founded fear of persecution in Colombo, he should not be returned there, as this would be unduly harsh. It was submitted that it was relevant, in this context, to consider matters such as the presence in this country, as opposed to Colombo, of members of his family.

The Tribunal was represented at the hearing, in order to raise the question of whether it had jurisdiction to consider the question of whether it was reasonable to send an asylum-seeker back to an alternative location. In giving the judgment of the court, Lord Woolf MR began by considering the relationship between the definition of refugee in Article 1(A)(2) and “the internal flight alternative”. Lord Woolf referred at the outset to paragraph 91 of the UNHCR Handbook, and observed that this publication was ‘particularly helpful as a guide to what is the international understanding of the Convention obligations, as worked out in practice’- p.938. This was accepted by the Secretary of State. Lord Woolf also commended, as setting out the test that should be applied:

“…. paragraph 8 of the joint position of 4 March 1996 (O.J. 1996 L. 63, p.2) defined by the Council of the European Union on the basis of article K.3 of the Treaty on European Union (O.J. 1992 C.191) on the harmonised application of the definition of the term ‘refugee’ in article 1 of the Geneva Convention, at p.6:

‘Relocation within the country of origin

Where it appears that persecution is clearly confined to a specific part of a country’s territory, it may be necessary, in order to check that the condition laid down in article 1A of the Geneva Convention has been fulfilled, namely that the person concerned ‘is unable or, owing to such fear (of persecution), is unwilling to avail himself of the protection of that country,’ to ascertain whether the person concerned cannot find effective protection in another part of his own country, to which he may reasonably be expected to move.’”

He added that ‘the use of the words “unduly harsh” fairly reflects that what is in issue is whether a person claiming asylum can reasonably be expected to move to a particular part of the country’ – p.943.

As to the appropriate factors to take into account when considering whether internal relocation is reasonable, Lord Woolf said at pp.939-940:

“In determining whether it would not be reasonable to expect the claimant to relocate internally, a decision-maker will have to consider all the circumstances of the case, against the backcloth that the issue is whether the claimant is entitled to the status of refugee. Various tests have been suggested. For example, (a) if as a practical matter (whether for financial, logistical or other good reason) the ‘safe’ part of the country is not reasonably accessible; (b) if the claimant is required to encounter great physical danger in travelling there or staying there; (c) if he or she is required to undergo undue hardship in travelling there or staying there; (d) if the quality of the internal protection fails to meet basic norms of civil, political and socio-economic human rights. So far as the last of these considerations is concerned, the preamble to the Convention shows that the contracting parties were concerned to uphold the principle that human beings should enjoy fundamental rights of freedoms without discrimination. In the Thirunavukkarasu case, 109 D.L.R. (4^th) 682, 687, Linden J.A., giving the judgment of the Federal Court of Canada, said:

Stated another way for clarity … would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?

He went on to observe that while claimants should not be compelled to cross battle lines or hide out in an isolated region of their country, like a cave in the mountains, a desert or jungle, it will not be enough for them to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there.”

Dealing with the question of jurisdiction, Lord Woolf held at p.942 that the appellate authorities had jurisdiction under section 8 of the 1993 Act to consider the reasonableness of internal relocation as this question went to the United Kingdom’s obligations under the Refugee Convention.

On the facts Lord Woolf held, in effect, that there was no basis for the assertion that it would be unreasonable or unduly harsh for the appellant to be returned to Colombo. No case had been advanced in relation to the appellant’s ‘civil, political and socio-economic human rights’. Lord Woolf referred to the principle that these should be enjoyed without discrimination. While discriminatory denial of human rights in the place of relocation can plainly be relevant to the question of whether an asylum-seeker can reasonably be expected to move there, we do not consider that Robinson establishes that it will not be reasonable to require relocation unless, in the place or relocation, these human rights are protected.

In Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 the Court of Appeal returned to the test for internal relocation suggested in Robinson. The issue was the manner in which the court should approach the question of whether it would be unreasonable, or unduly harsh, to expect the asylum seeker to relocate and, in particular, the correct approach to the standard of proof. In approaching this question Brooke LJ, at p.456, explained the origin of the unduly harsh test by reference to the second limb of Article 1(A)(2):

“This argument turns on the correct interpretation of a few words contained in the definition of ‘refugee’ in art 1A(2) of the convention, being any person who:

‘… owing to well-founded fear of being persecuted [for a convention reason] 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 county.’ (my emphasis)

The words I have italicised have not been interpreted literally. In theory it might be possible for someone to return to a desert region of his former country, populated only by camels and nomads, but the rigidity of the words ‘ is unable to avail himself of the protection of that country’ has been tempered by a small amount of humanity. In the leading case of Ex p Robinson this court followed an earlier decision of the Federal Court of Canada and suggested that a person should be regarded as unable to avail himself of the protection of his home country if it would be unduly harsh to expect him to live there. Although this is not the language of ‘inability’, with its connotation of impossibility, it is still a very rigorous test. It is not sufficient for the applicant to show that it would be unpleasant for him to live there, or indeed harsh to expect him to live there. He must show that it would be unduly harsh. (For an interpretation of the word ‘unduly’ in the context of the statutory phrase ‘unduly lenient’ see - A-G’s Reference (No 15 of 1990) (1990) 92 Cr App R 194 at 198-199 per Lord Lane CJ.)”

As to the correct approach to the test, Brooke LJ, at p.470, approved the following submission:

“…. when dealing with questions of internal protection, the decision-maker should simply ask: would it be unduly harsh to expect the applicant to settle there? In answering this question it may have to take into account the cumulative effect of a whole range of disparate considerations, in respect of some of which it may be satisfied that they probably did not occur (or are occurring), while in respect of others it may only think that there is a serious possibility that what the applicant and/or his/her witnesses is saying is correct.”

Sedley LJ at p.473, when considering the nature of the exercise, also focused on the second limb of Article 1(A)(2):

“Unfortunately both the special adjudicator and the tribunal failed to approach the convention methodically. They treated the availability of internal flight as a reason for holding that the fear of persecution was not well-founded. There may possibly be countries where a fear of persecution, albeit genuine, can so readily be allayed in a particular case by moving to another part of the country that it can be said that the fear is either non-existent or not well-founded, or that it is not ‘owing to’ the fear that the applicant is here. But a clear limit is placed on this means of negating an asylum claim by the subsequent provision of the article that the asylum-seeker must be, if not unable, then unwilling because of ‘such fear’ - ex hypothesi his well-founded fear of persecution - to avail himself of his home state’s protection. If the simple availability of protection in some part of the home state destroyed the foundation of the fear or its causative effect, this provision would never be reached. This is why in most cases, including the present one, it is in relation to the asylum-seeker’s ability or willingness to avail himself of his home state’s protection that the question of internal relocation arises. Because, however, unwillingness is explicitly related to the driving fear, it predicates a different set of considerations from inability, which may be indicated or contra-indicated by a much wider range of factors.”

It seems to us that these passages demonstrate the difficulty of referring the test of alternative location to the second limb of Article 1(A)(2) which was drafted for a quite different purpose. So far as the manner of applying the test was concerned, Sedley LJ at p.479 suggested that this was a question of evaluation rather than resolving a conflict of fact.

In Regina (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36; [2003] 1 AC 920 the issue was whether Germany had properly been certified as a safe third country pursuant to section 2(2) of the Asylum and Immigration Act 1996. One argument advanced in support of the submission that it had not was that Germany applied a more stringent test than this country when considering whether it reasonable to require the asylum seeker to relocate within his home state. In dealing with this submission, Lord Scott of Foscote, with whose speech Lord Bingham of Cornhill and Lord Millett were in general agreement, said at paragraph 115:

“The question whether an asylum applicant is excluded from refugee status because of his unwillingness to avail himself of the protection of his country by relocating in some other part of that country is not a question of interpretation of the Convention. It requires a judgment as to the reasonableness in all the circumstances of the unwillingness. In different countries, all being signatories to the Convention, different weight may be attached to different elements of the social and economic circumstances pertaining in the area of relocation. The fact that country A applies a stricter test of reasonableness than country B does not mean that one country is acting otherwise than in compliance with the Convention. No doubt there may come a point at which a country’s refusal to regard as reasonable a person’s unwillingness to relocate may itself appear so unreasonable as to be outwith the Convention. But Germany’s approach to relocation, via section 53(6) of the Aliens Act, requiring attention to be paid to potential ‘danger for body, life, or liberty’ cannot, in my opinion, possibly be regarded as outwith the Convention. Moreover, the standards required for compliance with the Convention are minimum standards. A country’s approach to internal relocation may be more liberal than is strictly required for compliance with the Convention. It is arguable that the United Kingdom approach is of that character.”

It is not easy to reconcile Lord Scott’s observations with the proposition that the test of internal location is one that goes to refugee status under the Convention, but we believe that his analysis of the position in practice is correct. The United Kingdom is not the only country which will refrain from sending home an asylum seeker who cannot establish refugee status if, for other reasons it will be unduly harsh to do so. So far as refugee status is concerned, a comparison must be made between the asylum seeker’s conditions and circumstances in the place where he has reason to fear persecution and those that he would be faced with in the suggested place of internal location. If that comparison suggests that it would be unreasonable, or unduly harsh, to expect him to relocate in order to escape the risk of persecution, his refugee status is established. The ‘unduly harsh’ test has, however, been extended in practice to have regard to factors which are not relevant to refugee status, but which are very relevant to whether exceptional leave to remain should be granted having regard to human rights or other humanitarian considerations.

The problem with this is that humanitarian considerations cannot readily be applied as a test of law as to whether an individual is entitled to refugee status. What is the touchstone that marks the difference between what is harsh and what is unduly harsh? The difficulty is exemplified by the following passage in the decision of the Tribunal in the present case:

“If an individual is not afforded basic human rights, he may often be properly said to be persecuted. If he is subjected to discrimination for a Convention reason, he may be entitled to be regarded as a refugee. But if he is not within the Convention, the fact (if it be the case) that the country of his nationality does not maintain the standards of the Universal Declaration will not make him a refugee. The Refugee Convention does not apply merely because persons have to exist in miserable conditions or there is economic deprivation. And the conditions on return cannot of themselves make someone a refugee even though his health or his life would be in danger.

If follows that logic might suggest that, however wretched the conditions in what we shall call the safe area if IR is applicable, they cannot in the absence of a real risk of persecution for a Convention reason prevent return. But in the light of Robinson and the conclusion that failure to meet the basic norms of human rights is a relevant factor, that cannot be a correct approach for us to adopt. It is in our view important to remember at all times that what is in issue is the need for surrogate protection. If the circumstances in the so-called safe area are such as Lord Woolf has referred to, there may be a real risk that the claimant will be compelled to return to his home area where he faces persecution. There is an analogy with refoulement. Thus if, persecution apart, the conditions are worse than those in the home area, it may be easier to conclude that it was unduly harsh to expect IR. In addition, if there is in the safe area a real risk that the conditions would expose the claimant to a serious breach of basic human rights, he should not be expected to go there. It may be said that there is a degree of illogicality in this if the risk of breaches of basic human rights are no worse than in his home area. It is perhaps possible to criticise the Robinson approach on the basis that the preamble to the Refugee Convention emphasises, as might be expected, the need for fundamental rights and freedoms to be enjoyed without discrimination. It is discrimination which will engage the Refugee Convention. However, it is not open to us to limit the issue of unreasonableness or undue harshness in this way since we are bound by Robinson. However it is in our view right that for IR to be regarded as unduly harsh any breach of fundamental rights must be established to be serious.”

Since Robinson was decided there have been material developments. The numbers of those claiming asylum have risen and statutory measures have been introduced in an attempt to reduce the flow of those who claim asylum for reasons other than a well-founded fear of persecution in their home countries. The Human Rights Act 1998 has come into effect and with it the obligation to have regard to Convention rights when considering whether to remove asylum seekers. Effect is given to this obligation so far as statutory immigration appeals are concerned by section 65 of the Immigration and Asylum Act 1999 (now s.84(1)(c), (g) of the Nationality, Immigration and Asylum Act 2002). Jurisprudence is developing as to the circumstances in which Convention rights will, or will not, be a bar to deportation – see, for instance, Regina (Ullah) v Special Adjudicator [2002] EWCA Civ 1856; [2003] 1 WLR 770. A distinction is drawn, so far as domestic rights are concerned, between those who enjoy refugee status and those who do not – see Saad, Diriye and Osorio v Secretary of State for the Home Department [2001] EWCA Civ 2008; [2002] INLR 34.

It seems to us important that the consideration of immigration applications and appeals should distinguish clearly between (1) the right to refugee status under the Refugee Convention, (2) the right to remain by reason of rights under the Human Rights Convention and (3) considerations which may be relevant to the grant of leave to remain for humanitarian reasons. So far as the first is concerned, we consider that consideration of the reasonableness of internal relocation should focus on the consequences to the asylum seeker of settling in the place of relocation instead of his previous home. The comparison between the asylum seeker’s situation in this country and what it will be in the place of relocation is not relevant for this purpose, though it may be very relevant when considering the impact of the Human Rights Convention, or the requirements of humanity.

In the present case Mr Husain made it clear that he was not invoking the Human Rights Act. His appeal was limited to the contention that AE should be granted refugee status because it would be unduly harsh to expect him to relocate in Colombo having regard to the effect that this would have on his wife’s psychiatric condition.

In considering this submission we proceed, as we have indicated, on the premise that the fear that her sons may be ‘rounded up’ from time to time in Colombo may aggravate her post traumatic stress disorder. There is, as the Tribunal observed, no evidence that the wife would not be able to obtain treatment in Colombo, or indeed other evidence to support the contention that the effect on her of return to Colombo would be particularly traumatic.

On the facts, the wife’s psychiatric condition is not attributable to persecution, or well-founded fear of persecution, on her part nor related to her husband’s well-founded fear of persecution in Jaffna. When considering the question of whether it would be reasonable to expect the husband to live in Colombo, rather than Jaffna, his wife’s condition is a neutral factor. It does not make Colombo unviable or unreasonable as a safe haven. There may be good grounds under the Human Rights Act, or as a matter of common humanity, for not sending this family back to Colombo. The reason why AE wishes to remain in this country is not that there is nowhere where he can reasonably be expected to live in Sri Lanka that will not expose him to a well-founded fear of persecution. In essence it is that if he and his wife are permitted to remain in this country this is likely to be beneficial to her post traumatic stress disorder, whereas return to Sri Lanka is likely to be detrimental to this. This is not a reason to find that he has refugee status under the Convention. His appeal must be dismissed.