Vanegas v The Secretary of State for the Home Department

J U D G M E N T

LORD JUSTICE LAWS:

1. This is a renewed application for permission to appeal against the decision of the Immigration Appeal Tribunal promulgated on 27th September 2002. The IAT dismissed the applicant's appeal against the earlier decision of the adjudicator on 6th June 2002. The adjudicator in turn had dismissed the applicant's appeal against the Secretary of State's refusal of her asylum claim and the making of removal directions. I refused permission to appeal to this court on consideration of the papers on 16th December 2002.

2. The case concerns what has become known as “internal relocation”. The applicant is a citizen of Colombia. In paragraph 2 of the IAT's decision they set out three paragraphs containing the adjudicator's findings of fact. The adjudicator had accepted that the applicant was a credible witness and he said (to quote from paragraph 19 of the adjudicator's decision, as set out in paragraph 2 of the tribunal's determination):

“I am prepared to accept that if the appellant were to return to her home town of Caloto, and if her presence there were to come to the attention of the members of the paramilitary group who threatened her previously because of her suspected links with FARC, there would then be a real risk that she might be killed or harmed in some other way by those paramilitaries. However, there is of course no obligation on the part of the appellant to return to her home area where she is known. On the contrary, she has the whole of the rest of Colombia in which she could relocate. In particular, she could consider moving to one of the larger cities, such as the capital, Bogota.”

3. So it will be seen that the adjudicator accepted that this applicant entertained an objective fear of persecution on a Convention ground if she were returned to Colombia; the whole weight of the case concerned the internal flight or internal relocation alternative.

4. The tribunal then proceeded to set out some of the evidence upon which the adjudicator's conclusions had been based. It is important to notice that there is no suggestion anywhere that the tribunal disagreed with the adjudicator's findings that this applicant did entertain a well-founded fear of persecution.

5. .After setting out that evidence, the tribunal referred in paragraph 4 to a letter from the United Nations High Commissioner for Refugees as follows:

“The UNHCR letter on which leave was given is from their deputy representative in this country to someone at the Refugee Council. The view is expressed that `there is no realistic “internal flight alternative” in Colombia for Colombians with a well founded fear of persecution. UNHCR knows of no safe havens in Colombia.' The adjudicator's decision was not of course based on the existence of any specific `safe havens`, as can be seen from the passage quoted. Mr Jayawardhena also relied on a UNHCR position paper of February 1999; but that does not deal specifically with Colombia at all. ...”

6. There is further reference to the UNHCR in paragraph 8, where another letter is referred to which the tribunal examined. They said:

“There is a great deal of discussion of the general law on the subject: we have to say again that this is not a useful purpose for such communications. If UNHCR have, as they sometimes do, something serious to say about the law, then the Rules allow them to apply to intervene and be represented by counsel, whose professional judgment should keep his submissions confined to what is relevant to the case in hand.”

7. Lastly, I should read the tribunal's own conclusions at paragraph 10:

“This appellant, unlike Acevedo [the appellant in another tribunal decision which had been referred to], had no public role at all: her whole case is based on a mistaken assumption by the paramilitaries that she was a supporter of FARC. While that, as the adjudicator was prepared to accept, might have given her a well-founded fear of persecution or breach of human rights if she had stayed in her home town, Colombia is a rugged country of considerable size and population. The conduct of the paramilitaries themselves in putting her name on a public notice, following the termination of police action against her, does not to us suggest that they can have had anything more in mind than driving her out of town. Having succeeded in that aim, there is nothing to show that they would have been interested in tracking her down anywhere else in Colombia, whether or not they could have got the help of the police in doing so; though that in itself appears unlikely, after her release. The appellant herself does not suggest that anything happened to alarm her during her month in the city of Cali: if she kept a low profile there, that appears to have been no more than she was used to doing in any event. In our view, the adjudicator was fully justified in not regarding it as unduly harsh to expect this appellant to return to some other part of Colombia than her home town.”

8. It was submitted on the applicant's behalf that the tribunal erred in law in finding that it was not unduly harsh to require the applicant to relocate in Colombia. There are really two arguments in Miss Khan's written skeleton. The first is that the tribunal misapplied or failed properly to consider the decision of this court in Robinson [1997] Imm AR 568, where Brooke LJ discussed the “unduly harsh” test. It seems to me, with respect to Miss Khan, that there is nothing in that point. The tribunal applied the test discussed in Robinson. There is nothing that I have seen in the case to show that they went wrong in law in relation to that authority.

9. The other point taken is that the decision of the tribunal should not be allowed to stand because it failed to take into account important evidence or material in the case, including the Colombia Country Assessment. The skeleton argument has this passage:

“8.The paramilitary groups in Colombia operate around the whole of the country. Furthermore, the appellant would not be afforded sufficient protection on return to Colombia.

9.The decision of the Immigration Appeal Tribunal is against the weight of the objective evidence. It is stated at C.35 of the Colombia Country Assessment that there are `parts of Colombia that may continue to be considered relatively safe, but an individual may come to adverse attention merely by moving from one area to another. There are occasions when internal flight might solve an individual's problems but people do live in a state of fear and some of them may feel that they have little choice but to leave the country.'“

10. Miss Khan has firmed up her submissions today by reference, first, to two tribunal decisions made last year. One is Garcia-Fuentes, which was notified on 25th November 2002. The other is Herrera, which was notified on 20th August 2002. Of course, the view one tribunal takes of issues of fact before it does not ordinarily drive the view that another tribunal might take of the facts before it, even in cases where there are overlaps or similarities between the two cases. One has to have that firmly in mind in assessing what one gets out of material such as these two other decisions. However, certainly in Garcia-Fuentes there is a good deal of emphasis on the view which has been repeated, as I understand it, more than once by the UNHCR that internal relocation is really not an option in Colombia. I refer, for example, to paragraph 13 of the determination in Garcia-Fuentes. Miss Khan submits for good measure that that was a case where the facts were not dissimilar from those of the present appeal. In that case the appellant was the Secretary of State and his appeal was dismissed. In Herrera too there seems to be an acceptance of the proposition that there is no real possibility of internal relocation in Colombia.

11. I desire to make it clear that there can be no guideline rule, far less a rule of law, that internal relocation is systematically and always unavailable in Colombia. However, I propose to give permission in this present case with a good deal of hesitation because it seems to me that there is a substantial amount of material emanating not least from the UNHCR (some of it certainly before the date of the tribunal decision here) which at the least draws attention to grave difficulties in the deployment of an internal relocation option in that country. It seems to me that it is just arguable, in a matter where after all the context is that of a person who has made out a case of well-founded fear of persecution, that the tribunal have not reasoned as clearly or fully as they should have reasoned the impact which material concerning internal flight relocation has on their assessment of the merits of the case. Their treatment of the UNHCR material before them might be said to be exiguous. Miss Khan has therefore established that there is enough in the case to merit the attention of the Court of Appeal on a full appeal with permission.

12. She submits also - and this is a matter more of the detail - that the sentence in the conclusions of the tribunal, “The conduct of the paramilitaries themselves in putting her name on a public notice, following the termination of police action against her, does not to us suggest that they can have had anything more in mind than driving her out of town,” while clearly being an important part of the tribunal's reasoning in those conclusions, is actually not supported on the evidence. That too, if she can make it out, is an argument she may adduce before the full court in due course.

13. For those reasons I grant permission.

Order: application for permission to appeal granted; UNHCR to be notified by counsel of grant of permission and may, if they wish, put in written material limited to 10 pages only in first instance.