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

This is an application by two children, a brother and sister, who are present in the United Kingdom as students, whose claim to refugee status, on the basis that they will be at risk of persecution if returned to Sudan has been rejected in a reconsideration by the AIT in a determination dated 6 November 2007. The basic reason for the refusal of refugee status and reaching the conclusion that they would not be at risk on return stems from evidence relating to their father and uncle. The evidence, accepted by the Tribunal, is that the father was a high-profile member of the SLA negotiating team in Saudi Arabia, who refused to sign what the government of Sudan described as the “Darfur Peace Agreement”, for reasons which will be obvious to anyone who knows anything about what is going on in the Sudan. The refusal led to his categorisation as a terrorist, and his deportation by the Saudi Arabian government to the Sudan. There he was detained, but it appears now, despite the no doubt appalling treatment that he received in detention, he has been released on reporting conditions, but lives in circumstances that hardly can be described as freedom.

Not content with that treatment of their father, their uncle has been similarly arrested and detained, and, according to his advocate in terms that have not been disputed, has been subjected to very serious ill-treatment whilst in detention. The relevance of his detention is that it has given rise to at least the suspicion (although it can be described as no more) that his treatment is attributable to his relationship with the brother.

The question for the fact-finding tribunal (Immigration Judge Harris) was whether the relationship of these two applicants to the father and the uncle would lead to the conclusion that they would be at risk once it was discovered, on questioning on return to Khartoum Airport, that they were related to that brother and the uncle. That is a question that, it has to be accepted, was asked of themselves by the Tribunal, but rejected. It is the process of that rejection which is impugned in this application advanced by Mr Jacobs. First of all, he criticises at paragraph 21 the AIT’s reference to previous occasions which did not expose these two applicants to risk when they went back to Sudan for visits from Saudi Arabia. It is true that that would not by any means indicate that they would be safe on return now, since at that stage their father had not been regarded as a terrorist and their uncle had not been detained and accorded the treatment described by his advocate. But nevertheless, it was a relevant factor that, in my judgment, the Tribunal was entitled to take into account.

Of greater substance was the essential basis upon which the Tribunal found that they would not be at risk. That conclusion was based on the evidence that the children of the uncle in Khartoum had not suffered ill-treatment or any difficulties as a result of their uncle’s treatment (see paragraph 29), and that there was no basis for saying that any other relatives had suffered ill-treatment because of their relationship to the father. Mr Jacobs points out that they were more distant relatives than the two children the subject matter of this application, being paternal aunts, uncles, cousins, and a paternal grandmother (see paragraph 28). But in my judgment the Tribunal inevitably had to form an assessment of risk by reason of relationship, and the fact that those relatives had not suffered ill-treatment because of their relationship to this very high-profile man was a relevant factor on which the Tribunal was, as a matter of fact, entitled to act.

Finally, the Tribunal pointed out at paragraph 34 that the relationship did not itself expose them to risk at return by reason of falling into a category, identified in HGMO, as being one which would expose any returnee to risk on return, such as known political activists or anti-government student activists.

In short, the decision of the Immigration Judge -- that the relationship did not expose them to a risk of persecution on return -- was a conclusion which the Tribunal was entitled to reach, despite the evidence which was accepted of the attitude of the government of Sudan to their father. In those circumstances, I would refuse this application.

I agree.

I also agree.