AA (Sudan) v Secretary of State for the Home Department

LORD JUSTICE KEENE: The appellant is a citizen of Sudan from the Darfur region of that country. Ethnically he is a black African. He arrived in this country in September 2003 and claimed asylum, but the issue in this appeal concerns his rights under Article 3 of the European Convention on Human Rights.

The Asylum and Immigration Tribunal (“the AIT”) by a decision promulgated on 17 July 2006, which was a second-stage reconsideration of his appeal, concluded that while his core claim of persecution in Darfur was credible he would not be at risk of Article 3 ill-treatment if he were to be returned to Khartoum. Permission to appeal against that decision was granted by Sedley LJ but on one ground only, namely that relating to the AIT’s alleged lack of consideration of certain expert evidence.

The facts concerning the appellant are not really in dispute and since he was regarded both by the original adjudicator and by the AIT as being truthful, those facts can be summarised quite briefly. He had lived with his wife and his own family in a village in Darfur in western Sudan but on 20 January 2006 the village was attacked by Arab militias supported by government troops. They shot indiscriminately at a crowd of herdsman, killing the appellant’s father and elder brother. The appellant tried to run away but he was chased and run over by a military vehicle. He was also stabbed in the back with a bayonet losing consciousness.

Eventually, he was treated in hospital from which he was discharged after about two months. He went back to his village but on 18 March 2000 he went to Khartoum police station to report the incident. He showed the police his scars and his hospital medical report. However, he was arrested and he was accused of making a false statement. The police retained his medical report and transferred him to a north Khartoum police station where he was beaten, punched, kicked, verbally abused and detained for three days. On the third day of his detention, in an incident described by the AIT as “curious but credible”, the appellant was lent to a senior police officer as a house slave. After a day the appellant escaped over a wall. It is to be observed that he had been told by the senior police officer to be ready to return to detention at the end of the “loan”.

The appellant in fact having escaped went to the home of M, the brother of a friend and someone who had arranged his earlier hospital admission. M then arranged for the appellant to go to his farm in north Khartoum where he remained looking after animals and trees in exchange for food and shelter. This arrangement lasted some three years until 17 August 2003. Around that time he heard that government troops had bombarded his home village in Darfur, again killing more members of his family. M decided that in the light of this it was too risky to allow the appellant to remain on his farm and he gave the appellant money to leave. The appellant did so, leaving Sudan by boat and eventually arriving in this country.

The appellant gave oral evidence before the AIT. Some of that evidence concerns issues which are no longer alive in this appeal, which is concerned with the tribunal’s treatment of the expert evidence before it. As the AIT briefly noted when summarising the appellant’s case, reliance was placed by his counsel on the report of Mr Peter Verney for the submission that the appellant could not safely be returned to Darfur. There were also submissions made about his safety in other parts of the Sudan. The AIT also had before it a report by the UNHCR of February 2006. It is necessary to summarise briefly what Mr Verney was saying. He is a former advisor to the House of Commons International Development Committee and patently an expert on Sudan. He dealt with two matters which are of relevance for present purposes. The first was the position of African Darfuris returning to Khartoum from the United Kingdom. He stated that they would be singled out by the security forces there who would start from the assumption that such a person was an opposition sympathiser. At paragraph 66 of his report he said that such persons would be seen as “likely to have become involved with the Darfur rebel movement” and so would be at risk of serious abuse. That, I note, was broadly in line with the UNHCR report which referred to such people facing a “heightened risk of scrutiny by the security apparatus”.

The second point made by Mr Verney concerned the appellant’s own personal history. Mr Verney noted that “there will be a record of his detention and of his escape” (paragraph 3) and in his concluding paragraph, having referred to the risk for African Darfuris generally on return, he said this:

In the section of its decision entitled “Discussion” the AIT accepted that the appellant was at risk in Darfur itself. As for the risk to him if returned to Khartoum as a form of internal relocation, the tribunal said this at paragraphs 56 and 57 of its decision and I quote both paragraphs verbatim:

On behalf of the appellant it is now submitted that the AIT failed to take into account the evidence of Mr Verney and the UNHCR report in arriving at its decision, which in consequence is flawed as a matter of law. Miss Fielden, who appears today for the appellant, draws attention to the fact that Mr Verney had given evidence that there would be a record of the appellant’s detention and escape and that that would compound the risk to him. The AIT merely refers, she says at paragraph 56, to it being most unlikely that he would be remembered by the senior police officer to whom he had been lent. It seems to have given no consideration to the evidence about there being a record of the appellant’s detention and escape. Alternatively, it is argued that if the AIT had decided to reject Mr Verney’s evidence on this aspect it is quite impossible to discover its reasons for so deciding.

On behalf of the Secretary of State Mr Patel relies on the finding of the AIT that the appellant would not be at risk because of his detention and escape and he says that Mr Verney’s evidence cannot impugn that finding. Even so, Mr Patel concedes that it would have been better if the AIT had referred to Mr Verney’s evidence expressly, but he argues that inherently it was something which the AIT took account of. In any event there was evidence before it about the general risk to black Darfuris in Khartoum and the AIT notes, Mr Patel emphasises, that the appellant had lived on a farm near Khartoum for three years without detection.

Via a respondent’s notice which we permit to be filed out of time, a further point is also raised based on the subsequent Country Guidance decision of the AIT in the case of HGMO v the Secretary of State for the Home Department [2006] UKAIT 00062. In that case, argues Mr Patel, the AIT finds that the ordinary run of returned Darfurians are not at real risk. He submits that there is nothing which takes this appellant out of that ordinary run of returnees and that in the light of that decision this appeal would be bound to fail, were it to be remitted to the AIT. Consequently this court should decline to remit it. The appellant, Mr Patel says, is not in one of the particular risk categories identified in that Country Guidance case.

Mr Patel has striven with skill and if I may so some charm to defend the AIT’s decision. However, it seems to me that there can be no doubt that the decision of the tribunal as it stands is legally flawed. Of course, the courts do not expect a decision maker to refer to every piece of evidence which is put before it, even though he may have taken it into account. That is a proposition of law which is well established, but some pieces of evidence are more important than others. It is undoubted that the appellant in this case was relying on Mr Verney’s evidence, not only in respect of the generalised risk to black African Darfuris returned to Khartoum, but also in relation to the extent of the risk to this individual appellant with his own particular personal history. That individual risk was crucial to the decision. Yet not merely does the AIT not refer to Mr Verney’s evidence about there being a record of the detention and escape, the tribunal’s reference to the senior police officer’s memory can only significant if that was the sole basis on which the appellant could be at risk because of his detention and escape. It seems, therefore, as though the AIT overlooked the evidence about the existence of such a record. The only alternative to that would be a decision by it to reject this part of Mr Verney’s evidence. Yet there is no express rejection of it and if it were rejected it seems to me that some reasons, given its significance, would have had to have been given. The decision however is silent on this. One simply does not know, if Mr Verney’s evidence on this issue was rejected, why it was rejected. All of this amounts in my judgment to an error of law.

There is a distinction sought to be drawn in the Secretary of State’s written skeleton between internal relocation to Khartoum and the risk to the appellant on his return from this country to Khartoum. That seems to me to be an unjustified distinction; it cannot explain the AIT’s omission because they explicitly dealt with the risk to the appellant on return to Khartoum. In paragraph 57, which I have set out earlier, they said that he “would fall to be treated as any other black African returning to Khartoum”. That is a finding which simply cannot stand.

Does the later decision of the AIT in HGMO Sudan alter the position so that there is no point in remitting this matter to the AIT? It is right that Country Guidance cases such as HGMO are now to be regarded by the tribunal as “authoritative” in any subsequent appeal insofar as that appeal:

However, as the AIT itself noted in HGMO, each case is dependent on its own facts and the legal position is that any Country Guidance still has to be applied to the factual situation of the case in question. HGMO is itself due to come before this court on 20 March this year, permission to appeal having been granted by Moses LJ.

But in any event it is a case which is directed principally towards the general position of non Arab Darfuris returned to Khartoum. It concludes that a “person will not be at real risk on return to Khartoum solely because he or she is of Darfuri origin or non-Arab Darfuri origin” [See the head note paragraph 3]. Paragraph 266 states:

It is quite true that the AIT in that decision does identify certain categories of persons where particular risk factors will arise. But it does not address the position of those who have been detained by the police in Khartoum and who have then escaped from detention, as is the case of this appellant. Those individual features of this case may put him into a higher risk category. Certainly they have the potential to do so. Consequently, it seems to me that this is evidence which may be significant and that that is an issue which can only be determined by the AIT. I for my part cannot say that this appeal is bound to fail. Consequently, there remains a factual decision to be made on the individual risk to this appellant in the light of Mr Verney’s evidence about the record of the appellant’s detention and escape. That is not predetermined by the decision in HGMO nor indeed is it one that this court could properly take.

I therefore would allow this appeal and remit the case to the AIT on the issue of the risk to the appellant on return from this country to Khartoum.

LADY JUSTICE SMITH: I agree.

LORD JUSTICE MAY: I also agree. The appeal will accordingly be allowed and the matter remitted for reconsideration as my Lord, Lord Justice Keene, has said on the issue of the risk to the appellant on his return to Khartoum.