AS (Afghanistan) v Secretary of State for the Home Department

The issue in Januzi was identified by Lord Bingham in para. 1 of his opinion (p. 438 C-D) as being:

“… whether, in judging reasonableness and undue harshness in this context, account should be taken of any disparity between the civil, political and socio-economic human rights which the appellant would enjoy under the leading international human rights conventions and covenants and those which he would enjoy at the place of relocation.”

The unanimous conclusion of the House was that any such comparison between conditions in the country of refuge and in the safe haven was irrelevant. It approved the decisions to that effect of the Court of Appeal in E v Secretary of State for the Home Department [2003] EWCA Civ 1032, [2004] QB 531, and of the Federal Court of Appeal of Canada in Thirunavukkarasu v Canada (Minister of Employment and Immigration) (1993) 109 DLR (4^th) 682 and Ranganathan v Canada (Minister of Citizenship and Immigration) [2001] 2 FC 164; and it declined to follow the contrary view of Professor Hathaway and courts in New Zealand and Australia (referred to as

“the Hathaway/New Zealand rule”). The principal speeches were given by Lord Bingham and Lord Hope, though there was also a concurring opinion by Lord Carswell.

That issue and the House’s conclusion on it do not directly bear on the issue raised by ground 2, but, as will appear, Lord Bingham and Lord Hope did offer some more general guidance.

First, we were referred to para. 12 of Lord Bingham’s opinion (pp. 444-5), where he quotes with approval a passage from the judgment of the Federal Court of Appeal in Ranganathan, as follows:

“15.

We read the decision of Linden JA for this Court [in Thirunavukkarasu] as setting up a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.

16.

There are at least two reasons why it is important not to lower that threshold. First, as this Court said in Thirunavukkarasu, the definition of refugee under the Convention 'requires claimants to be unable or unwilling by reason of fear of persecution to claim the protection of their home country in any part of that country'. Put another way, what makes a person a refugee under the Convention is his fear of persecution by his home country in any part of that country. To expand and lower the standard for assessing reasonableness of the IFA is to fundamentally denature the definition of refugee: one becomes a refugee who has no fear of persecution and who would be better off in Canada physically, economically and emotionally than in a safe place in his own country.

17.

Second, it creates confusion by blurring the distinction between refugee claims and humanitarian and compassionate applications. These are two procedures governed by different objectives and considerations …”

Secondly, we were referred to one of the reasons given by Lord Bingham for rejecting the Hathaway/New Zealand rule. At para. 19 of his opinion he said (pp. 447-8):

“… [A]doption of the rule would give the [Refugee] Convention an effect which is not only unintended but also anomalous in its consequences. Suppose a person is subject to persecution for Convention reasons in the country of his nationality. It is a poor country. Standards of social provision are low. There is a high level of deprivation and want. Respect for human rights is scant. He escapes to a rich country where, if recognised as a refugee, he would enjoy all the rights guaranteed to refugees in that country. He could, with no fear of persecution, live elsewhere in his country of nationality, but would there suffer all the drawbacks of living in a poor and backward country. It would be strange if the accident of persecution were to entitle him to escape, not only from that persecution, but from the deprivation to which his home country is subject. It would, of course, be different if the lack of respect for human rights posed threats to his life or exposed him to the risk of inhuman or degrading treatment or punishment.”

Third, Mr Singh referred us to the observation of Lord Carswell, at para. 67 of his opinion (p. 464 C-D), that:

“It is necessary to stress the rigorous nature of the test for unreasonableness or undue harshness, as to which see the judgment of the Canadian Federal Court of Appeal … quoted by Lord Bingham ….”

After dealing with the actual issue raised by Januzi Lord Bingham went on to observe that decision-makers needed some guidance on how to assess the reasonableness of an internal relocation alternative. It was in that context that he referred to the 2003 UNHCR Guidelines as noted at para. 11 above. After stating the basic principle which I have there quoted he goes on to set out some passages from the Guidelines developing what is meant by “a relatively normal life without facing undue hardship”.

Lord Bingham continued, in another passage to which Ms Naik referred us:

“Helpful also is a passage on socio-economic factors in Storey [The Internal Flight Alternative Test: The Jurisprudence Re-examined (1998) 10 International Journal of Refugee Law, 499] p 516 (footnotes omitted):

‘Bearing in mind the frequency with which decision-makers suspect certain asylum seekers to be simply economic migrants, it is useful to examine the relevance to IFA claims of socio-economic factors. Again, terminology differs widely, but there seems to be broad agreement that if life for the individual claimant in an IFA would involve economic annihilation, utter destitution or existence below a bare subsistence level (Existenzminimum) or deny 'decent means of subsistence' that would be unreasonable. On the other end of the spectrum a simple lowering of living standards or worsening of economic status would not. What must be shown to be lacking is the real possibility to survive economically, given the particular circumstances of the individual concerned (language, knowledge, education, skills, previous stay or employment there, local ties, sex, civil status, age and life experience, family responsibilities, health; available or realisable assets, and so forth). Moreover, in the context of return, the possibility of avoidance of destitution by means of financial assistance from abroad, whether from relatives, friends or even governmental or non-governmental sources, cannot be excluded.’”

I should add that the passage from para. 21 of his opinion quoted by Lord Bingham in AH (Sudan) (see para. 10 above) occurs in the context of a different point (relating to whether, in the context of the risk of persecution by the state authorities, it should be presumed that the agents of the state will be able to operate throughout the country); but, as we have seen, Lord Bingham says that it has a wider application.

Lord Hope likewise sought, having addressed the particular issue on the appeal, to give more general guidance. At para. 47 of his speech (p. 457 G-H) he says:

“The question where the issue of internal relocation is raised can … be defined quite simply. As Linden JA put it in Thirunavukkarasu v Canada (Minister of Employment and Immigration) (1993) 109 DLR (4th) 682, 687, it is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a

relatively normal life there judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.”

As already noted, the applicants in AH (Sudan) had fled persecution in rural Darfur. The Secretary of State rejected their applications for asylum on the basis that they could reasonably be expected to relocate to Khartoum, where they could be accommodated in refugee camps or squatter settlements. The AIT upheld that decision. Their appeal to the Court of Appeal was successful, but the decision of the AIT was reinstated by the House of Lords.

The leading opinion is that of Lord Bingham, with which all the other members of the House agreed. There were also, however, substantial speeches from Lady Hale and Lord Brown. Lord Hope expressly agreed with Lord Brown as well as Lord Bingham

Lord Bingham started his opinion by recapitulating the effect of Januzi. I have already set out what he says at para. 5: see para. 10 above. He then summarised the decisions of the AIT and the Court of Appeal. One of the bases on which the Court of Appeal had overturned the decision of the AIT was that it “wrongly made a comparison between conditions in the country as a whole and those prevailing in the place of intended alternative relocation and not, as envisaged by Januzi and other authority, between conditions in the place of habitual residence and those in the safe haven”. In other words, its criticism was that the AIT should have proceeded on the basis only of a comparison of conditions in Khartoum with the respondents’ previous stable rural village life in Darfur. Lord Bingham’s reason for rejecting that criticism

I turn to the speech of Lady Hale. She starts by saying, at para. 20 (p. 688 B-F):

“We are all agreed that the correct approach to the question of internal relocation under the Refugee Convention is that set out so clearly by my noble and learned friend, Lord Bingham of Cornhill, in Januzi and others v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426, at para 21:

‘The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so.’

As the UNHCR put it in their very helpful intervention in this case,

‘… the correct approach when considering the reasonableness of IRA [internal relocation alternative] is to assess all the circumstances of the individual’s case holistically and with specific reference to the individual’s personal circumstances (including past persecution or fear thereof, psychological and health condition, family and social situation, and survival capacities). This assessment is to be made in the context of the conditions in the place of relocation (including basic human rights, security conditions, socio-economic conditions, accommodation, access to health care facilities), in order to determine the impact on that individual of settling in the proposed place of relocation and whether the individual could live a relatively normal life without undue hardship.’

I do not understand there to be any difference between this approach and that commended by Lord Bingham in paragraph 5 of his opinion. Very little, apart from the conditions in the country to which the claimant has fled, is ruled out.”

(The various factors specified by UNHCR in the passage quoted all derive from the 2003 Guidelines.)

After addressing a separate point about the (ir)relevance of article 3 of the ECHR, Lady Hale at paras. 27-29 identified a particular concern that she had about the AIT’s approach. She said (pp. 690-1):

“27.

… We know that the standard of comparison is not the lives which the returning claimants are living here: that is what Januzi was all about. We know that the lives they led before the persecution are a relevant factor but not, as the Court of Appeal thought, the starting point. We know that the lives they will face on return have to be considered in the context of ‘standards prevailing generally in the country of nationality’: Lord Bingham in Januzi, para 20. If people can return to live a life which is normal in that context, and free from the well-founded fear of persecution, they cannot take advantage of past persecution to achieve a better life in the country to which they have fled: see Lord Bingham in para 5 of his opinion. But this does not mean that the holistic consideration of all the relevant factors, looked at cumulatively, can be replaced by a consideration of whether their circumstances will be worse than the circumstances of anyone else in that country.

28.

Yet the Tribunal concluded that because the conditions faced by returning Darfuris, however appalling, would be no worse than those faced by other Sudanese IDPs it would not be not ‘unduly harsh’ to expect them to return. The standard of comparison was, not with their lives in Darfur before their persecution, not with the general run of ordinary lives in Sudan, not even with the lives of poor people in Sudan, but with the lives of the poorest of the poor, internally displaced victims of the civil war in the south, living in camps or squatter slums, and ‘subject from time to time to relocations, sometimes involving force and human rights violations’ .... They too had been subsistence farmers, ill-equipped to survive in the city slums

…; they too had suffered the psychological horrors of civil war…, if

not of government-backed genocide; the Darfuris would be no worse off, unless particular individuals attracted the adverse interest of the authorities … With respect, this is not the individualised, holistic assessment which the question requires.

29.

My concern, therefore, is that, although the determination does refer to many relevant considerations, it … subordinates all considerations to a comparison with the very worst lives led by other Sudanese …”

Notwithstanding those concerns Lady Hale concluded that no legal error in the AIT’s decision had been established.

As for Lord Brown, at para. 35 he says that there is not a word in the opinion of Lord Bingham with which he disagrees and he goes on to refer to the encapsulation of the relevant test at para. 5 of that opinion. At para. 37 he says (p. 693):

“Despite the apparent clarity and simplicity of the test, however, the arguments before your Lordships suggest that doubts and misconceptions still exist about its proper application, and not least the relevance of the conditions prevailing in the place of habitual residence (the place of persecution from which the claimant fled and to which he cannot safely return.) The ultimate decision to be made is, as stated, whether it is on the one hand ‘reasonable’ or on the other hand ‘unduly harsh’ to require the claimant to relocate. Clearly the conditions and circumstances of his previous way of life may inform that decision, bearing for example upon his ability to adapt to whatever changes and challenges are involved in relocation. But it is wrong to suggest, as the Court of Appeal do, that the critical contrast to be struck is between the circumstances in which the claimant lived when persecuted and those he would face in the proposed safe haven—so that if, for example, he had been rich and lived well but now, if relocated, would face comparative poverty, he would for that reason be entitled to asylum.”

After referring to the decision in E he continues, at para. 39 (pp. 693-4):

“Taken as a whole the speeches in Januzi are really quite irreconcilable with the respondents’ submission to your Lordships that the comparison between conditions in the place of persecution and those in the safe haven is the all important one. Rather, as Januzi—

and, indeed, the 2003 UNHCR guidelines—make clear, in determining the reasonableness of the proposed relocation regard must be had to conditions generally in the country of origin.”

Lord Brown returns to the issue at para. 42, where he says (pp. 694-5):

“As mentioned, one touchstone of whether relocation would involve undue hardship, identified in the UNHCR guidelines and referred to in the passage already cited from para 47 of Lord Hope’s speech in Januzi, is whether ‘in the context of the country concerned’ the claimant can live ‘a relatively normal life’. The respondents are fiercely critical of the Tribunal’s approach to this question in the present case. In particular they criticise the Tribunal’s conclusion as to ‘the subsistence level existence in which people in Sudan generally live’. To my mind, however, this criticism is misplaced. It is not necessary to establish that a majority of the population live at subsistence level for that to be regarded as a ‘relatively normal’ existence in the country as a whole [original emphasis]. If a significant minority suffer equivalent hardship to that likely to be suffered by a claimant on relocation and if the claimant is as well able to bear it as most, it may well be appropriate to refuse him international protection[emphasis supplied]. Hard-hearted as this may sound, and sympathetic although inevitably one feels towards those who have suffered as have these respondents (and the tens of thousands like them), the Refugee Convention, as I have sought to explain, is really intended only to protect those threatened with specific forms of persecution. It is not a general humanitarian measure. For these respondents, persecution is no longer a risk. Given that they can now safely be returned home, only proof that their lives on return would be quite simply intolerable compared even to the problems and deprivations of so many of their fellow countrymen would entitle them to refugee status. Compassion alone cannot justify the grant of asylum.”

In AA (Uganda) [2008] EWCA Civ 579 the claimant was a young woman from northern Uganda who had fled from abuse there and who was at risk of serious harm, within the meaning of Part V of the Qualification Directive, if she returned to the part of the country from which she originated. But the Secretary of State decided, and the AIT accepted, that she would be safe if she relocated to Kampala. At the time of the AIT’s decision AH (Sudan) had not been decided.

This Court allowed her appeal on the basis that if she were returned to Kampala it was likely that the only way that she could survive was by prostitution. The leading judgment was given by Buxton LJ. In his summary of the relevant law he referred, at para. 7, to the opinion of Lord Bingham in AH (Sudan). He also referred to Lord

AAH (Iraqi Kurds – internal relocation) Iraq CG UKUT 00212 (IAC) is, as the title suggests, a country guidance case concerned with the issue of whether it is reasonable to expect Iraqi Kurds to relocate to the Iraqi Kurdish Region (“the IKR”). It was decided in June 2018, but it had been heard in February, and the UT (UTJJ O’Connor and Bruce) does not refer to the decision in the present case.

Mr Singh appeared for the Secretary of State in AAH. He relied on para. 42 of Lord

The UT considered those submissions with care at paras. 79-90 of its Reasons. It began by referring to, in substance, the same passages from Januzi and AH (Sudan) as I have quoted above. It then turned to an analysis of the relevant parts of Lord Brown’s speech. It says, at paras. 84-85:

“84.

And then there is the speech of Lord Brown upon which Mr Singh relies. As we have set out above, it gives rise to two points of contention between the parties. First, whether it is appropriate to use, as a benchmark of reasonableness, the conditions of a 'significant minority' of the population:

‘It is not necessary to establish that a majority of the population live at subsistence level for that to be regarded as a "relatively normal" existence in the country as a whole. If a significant minority suffer equivalent hardship to that likely to be suffered by a claimant on relocation and if the claimant is as well able to bear it as most, it may well be appropriate to refuse him international protection [emphasis added].’

And second, to what standard must conditions have sunk before they will become ‘unreasonable’:

‘Given that they can now safely be returned home, only proof that their lives on return would be quite simply intolerable compared even to the problems and deprivations of so many of their fellow countrymen would entitle them to refugee status. Compassion alone cannot justify the grant of asylum [emphasis added].’

85.

In our view it is quite plain that in respect of the first matter Lord Brown was not dissenting from the view of the majority: he expressly endorses it, repeats it himself [at §35], and approves [at §39-40] the UNHCR guidelines cited by Lord Bingham (and Lady Hale). How then can his opinion be squared with that majority view, with its emphasis on the ‘conditions generally prevailing’ in the home country?”

The UT then refers to AA (Uganda), observing that Buxton LJ did not regard Lord Brown’s speech as inconsistent with Lord Hope’s statement in Januzi that the issue was whether the claimant could “live a relatively normal life [in the safe haven]

At para. 88 the UT referred to the error made by the AIT in AA (Uganda) as illustrating the dangers of treating “the significant minority test” as determinative. It also referred to EB (Lone Women - PSG - internal relocation – AA (Uganda) considered) Sierra Leone [2008] UKAIT 00090. It continued:

“89.

As the decisions in AA (Uganda) and EB (Sierra Leone) make clear, there is no reasonable internal relocation alternative if that alternative involves a real risk of inhuman and degrading treatment, persecution or serious harm. In such a situation it matters not whether the size of the group facing that degradation is one individual, a significant minority or indeed a significant majority of the population. Once conditions fall below that baseline internal flight is no longer an issue, since removal would be prevented by the real risk of serious harm. That much is accepted by the Respondent. We find however that the same logic must apply to conditions which would, if endured by the putative refugee, be 'unreasonable' or 'unduly harsh': that is the effect of Lady Hale's speech in AH, which we have set out above. For that reason we are satisfied that Lord Brown was not inviting identification of a comparator group to the exclusion of all other considerations. The fact that an applicant may endure the same living conditions as a 'significant minority' of his countrymen cannot of itself render his internal relocation 'reasonable'. The test is, and remains, whether those living conditions are, for the individual concerned, 'unduly harsh': that is an assessment to be made taking account of ‘all relevant circumstances pertaining to the claimant and his country of origin’.

90.

That brings us to the second matter in contention: Mr Singh's submission that ‘in order for any harshness to be “undue” [the Appellant] would have to show that, in comparison to the “significant minority” his likely life on return to the IKR “would be quite simply intolerable”, i.e. significantly worse that the lives of the “significant minority”’. On this matter we can be brief. It is accepted that in the spectrum of suffering there is a difference between Article 3 illtreatment and what might be considered 'unduly harsh'. This is made clear in Lord Bingham's speech in AH (Sudan) at [9]. One involves serious harm or inhuman and degrading treatment; the other a life that cannot be considered 'reasonable'. Given his express agreement with the other judgments in both Januzi and AH we do not accept that Lord Brown was here seeking to conflate the two, or to elevate one to the other. Whilst the words ‘quite simply intolerable’ could be given their literal meaning, ‘unable to be endured’, we can only read the phrase in context, and doing so we find that that it can mean no more than 'unreasonable' or 'unduly harsh'. We do not think that any further gloss on the concept is required. As Lord Bingham puts it: ‘the difficulty lies in applying the test, not in expressing it’.”

To anticipate, I have set out the reasoning of the UT in AAH at such length – including some passages which go beyond the particular issue before us – because I entirely agree with it.

I have already summarised the overall structure of the Upper Tribunal’s reasoning and set out its essential conclusions. But I need to give more detail about its analysis of the authorities discussed above.

At paras. 18-26 of its Reasons the Tribunal quotes most of the passages from Januzi and AH (Sudan) which I have set out above. At para. 27 it notes that Mr Singh relied on the use in para. 42 of Lord Brown’s speech in AH (Sudan) of the phrase “a significant minority”; that Ms Naik challenged that reliance, on grounds which it summarises at paras. 27-33 (and which include the submission that what Lord Brown said was obiter and inconsistent with the ratio of the majority); and, at paras. 34-35, that Mr Singh made two points in response. (The Tribunal does not in fact identify the specific submission for the purpose of which Mr Singh relied on the passage in question, nor does its summary of Ms Naik’s response make the position clear.)

The Tribunal sets out its view of the effect of para. 42 of Lord Brown’s speech at paras. 36-37, as follows:

“36.

We do not consider that Lord Brown’s judgment in AH

(Sudan) is either strictly obiter dicta or a minority judgment such that it is not binding on the Upper Tribunal. This is because first, it was expressly approved by Lord Hope; secondly, it is not inconsistent with the speeches of Lord Bingham or Baroness Hale in AH (Sudan); and thirdly, in any event it was expressly approved by Buxton LJ in AA(Uganda) which is itself binding on us.

37.

When assessing the reasonableness of internal relocation, the language used in Januzi and AH (Sudan) is of standards or conditions generally prevailing in the home country and of whether a person can live a relatively normal life. There is of course no single standard or set of conditions which apply throughout a country, but a range of examples of ‘normal’ or conditions which are experienced either in particular parts of the country, or throughout it by groups of people. One can envisage for example, that there will almost inevitably in any country in the world be differences between standards generally prevailing in urban as opposed to rural areas, and between the capital or large cities and other areas. That is not to say that because the majority of the population live in, for example a rural area, the conditions in urban areas could not said to be normal or include conditions generally prevailing in the home country. We consider that Lord Brown’s reference to a significant minority of the population is expanding on what is contained in the speeches of Lord Bingham and Baroness Hale, and is simply a way of expressing what is, in practice, required to identify standards or conditions generally prevailing in the home country, reflecting that there is not a single standard or set of conditions which apply to a simple numerical majority of the population throughout the entire geographical territory of a country.”

At para. 38 it draws support for that conclusion from AA (Uganda).

The Tribunal concludes, at paras. 39-40:

“39.

The test, or comparator for the purposes of assessing reasonableness, is as set out in AH (Sudan), including as expressly set out by Lord Brown, with the caveat that there are some conditions that are unacceptable even if widely suffered in the place of relocation. That particular point was confirmed and expanded upon by the Upper Tribunal in FB (Lone women – PSG – internal relocation– AA (Uganda) considered) Sierra Leone [2008] UKAIT 00090, which held at [39] that ‘[AA (Uganda)] is affirmation, in line with AH(Sudan) that [internal] relocation must be reasonable, in other words, that it must not have such consequences upon the individual as to be unduly harsh for her. Inevitably, it will be unduly harsh if an appellant is unable for all practical purposes to survive with sufficient dignity to reflect her humanity. That is no more than saying that if survival comes at a cost of destitution, beggary, crime or prostitution, then that is a price too high.’

40.

The final principle that therefore flows from AH (Sudan) is that when considering the standards or conditions prevailing generally in the country of nationality, it is not necessary to establish that a majority of the population live in those particular conditions, but only that a significant minority suffer equivalent hardship to that likely to be suffered by the applicant on relocation. What follows is then a personalised assessment of whether the applicant would be as well able to bear it as most or whether those conditions are in any event unreasonable, for example because they involve crime, destitution, prostitution and the like. There is no requirement for a specific numerical, geographical or other qualification on what is a significant minority of the population. That phrase carries its ordinary and natural meaning of something of a sufficiently great number to be worthy of attention in the context of the population of the home country and not insignificant and its application should be self-evident on an assessment of the factual evidence in the majority if not all cases. If interpreted this way, there is no central inconsistency with Baroness Hale’s speech in AH (Sudan) which highlighted, inter alia, the concern that the comparator should not be with the poorest of the poor in a particular country.”

Ground 2 was pleaded under two heads. In my judgment giving permission, having had the issues clarified in oral submissions, I identified the substance as follows:

“Head (a) is that the Upper Tribunal’s interpretation at paragraphs 3740 of the determination of what Lord Brown said at paragraph 42 of his speech in AH (Sudan) is inconsistent with the interpretation placed on the same passage in another decision of the Upper Tribunal, AAH, promulgated shortly after the decision in this case – see paragraphs 87-89 – and that the interpretation in AAH is to be preferred. Ms Naik says that that self-direction led the Upper Tribunal into the error of comparing the condition of returnees to Kabul with ‘the poorest of the poor’, contrary to Lady Hale’s injunction in AH (Sudan). She made it clear that she was not contending that what Lord Brown says was positively wrong, only that it was liable to misinterpretation and had been misinterpreted by the Tribunal in this case. …

As to head (b), the point is that the Tribunal made no explicit allusion to the consideration, said in terms in AH (Sudan) to be relevant albeit in no way decisive, that the experience of the appellant and others like him as a returnee in Kabul would be very different from his experience of rural life in his home province of Laghman.”

I start by summarising the essential points, so far as relevant to this appeal, established by the authorities about the nature of the exercise required by article 8 of the Directive. I emphasise that this is not intended as a comprehensive analysis of all the issues raised by the authorities to which I have referred.

In his written submissions Mr Fordham identified “UNHCR’s core submission”. He said:

“The correct approach when assessing the reasonableness of a proposed internal relocation, flight or protection alternative (“IFA”) is to carry out a single, holistic assessment which focuses upon the circumstances of the individual. That assessment:

2.1

may, as one factor, consider what is ‘a relatively normal life’ in the context of the country concerned; but

2.2

must consider the conditions in the place of relocation against certain objective ‘baseline standards’; and

2.3

must consider the impact of the proposed relocation on the particular individual, having regard to that individual’s characteristics, personal circumstances and past experiences.”

Although I have ranged wider, it will be seen that my summary is essentially consistent with that submission. I would, however, sound a note of caution about the reference to “certain objective ‘baseline’ standards”. I would accept that the point made at para. 61 (6) above requires an objective judgment by the decision-maker, and also that it does imply some concept of a threshold below which it will not be reasonable to expect the individual to stay in the safe haven – that indeed is the burden of the passage from Dr Storey’s article approved by Lord Bingham in Januzi (see para. 38 above). But the particular terminology of “objective baseline standards” (Footnote: ³) is to my mind rather too suggestive of the Hathaway/New Zealand approach which the House of Lords has disapproved.

It is convenient to deal here with one central theme of Ms Naik’s submissions. She contended that, because the exercise required by article 8 of the Directive required the application of objective norms applicable to the conditions which a returnee would experience in the safe haven, comparison with the conditions experienced by others was irrelevant. That goes too far. Any assessment of reasonableness must be, in one sense, objective; but that does not preclude the comparison of the conditions which a returnee would enjoy in the safe haven with those that apply generally in the country in question, and the authorities positively require that such a comparison form part of the assessment.

Against that background, I turn to the effect of para. 42 in the speech of Lord Brown in AH (Sudan). As already indicated, I agree entirely with the passages which I have quoted from the decision of the UT in AAH: see paras. 52-55 above. In particular, I agree that Lord Brown cannot have been intending to enunciate a “significant minority test” in the sense which Mr Singh was understood to have been advancing in that case (Footnote: ⁴): that is, he was not saying that if it was established that a significant minority of people in the country in question lived in conditions of great hardship it necessarily followed that it was reasonable to expect a returnee to live in those conditions. Such a conclusion would have been contrary not only to what Lady Hale said in AH (Sudan), as argued by Ms Naik, but to the basic approach enunciated by Lord Bingham in both that case and Januzi and accepted by the other members of the House in both cases. As we have seen, Lord Brown said in terms that he endorsed every word of Lord Bingham’s opinion.

It seems to me clear, rather, that, instead of veering so inexplicably off-piste, Lord Brown was making a more limited point. The subject of para. 42 is, avowedly, a challenge by the applicants to a finding by the AIT that “people in Sudan generally live [at subsistence level]”. He does not in fact spell out what the challenge was, but it appears to have been that the evidence did not support the finding that a majority of people in Sudan lived at subsistence level. His point was that, even if that was so, it did not mean that living at subsistence level could not be regarded as relatively normal (Footnote: ⁵) in the context of Sudan. All that he was doing was to elaborate a little on what “relatively normal” – or its cognate, “prevailing generally” – entailed: conditions can be normal/general even if they apply to less than half the population.

So understood, what Lord Brown says in para. 42 of his speech seems to me, with respect, right; and my conclusion is reinforced by the fact that the speech as a whole was agreed with by Lord Hope and that this particular passage was endorsed by Buxton LJ in AA (Uganda) (Footnote: ⁶). As the UT puts it in AAH, the lived lives of the population of any country will “entail a diversity of experience”. Or, as the Tribunal put in the present case:

“There is no single standard or set of conditions which apply throughout a country, but a range of examples of ‘normal’ or conditions which are experienced either in particular parts of the country, or throughout it by groups of people.”

It would be arbitrary and unworkable – and, more to the point, contrary to the whole nature of the required exercise – if the question of what was “relatively normal” in the context of a given country depended on having to show that the conditions in question were experienced by 50%+1 of the population.

I wish to make one other point before leaving this part of the discussion. In my view it is contrary to the message of Januzi, as repeated in AH (Sudan), to pick on particular statements or phrases in any of the speeches in either case – or indeed in the UNHCR Guidelines, valuable though they are – and subject them to minute examination as if they had quasi-statutory effect, still less to treat them as giving rise to distinct “tests”. Lord Bingham went out of his way in AH (Sudan) to emphasise that the assessment of reasonableness was “one of great generality”: see para. 13 of his opinion. What is essential is that the decision-maker should conduct the kind of holistic assessment, encompassing all relevant considerations, which is required.

The question then is whether the Upper Tribunal in the present case did carry out the assessment required.

I start with its treatment of the law: see paras. 58-59 above. I can see no substantial difference between the analysis of the relevant parts of Lord Brown’s speech in AH (Sudan) at para. 37 of the Reasons and the analysis in AAH which I have said that I believe to be correct. Paras. 38-39 do not go much beyond that. Para. 40, in which the Tribunal states what it calls “the final principle that … flows from AH (Sudan)”, is rather more problematic. Mr Fordham contended that that paragraph erroneously treats Lord Brown’s observations “as laying down (1) a test to be met when considering the reasonableness of an IFA, and (2) a test determinative of the reasonableness of an IFA rather than describing a factor in the assessment” and that it made it “the starting-point in every assessment of reasonableness”. Ms Naik made submissions to essentially the same effect. Mr Fordham also contended that the examples given of conditions which might render relocation unreasonable – “crime, destitution, prostitution and the like” – were unduly specific and limiting and did not cover the range of matters which the Guidelines specified as relevant to the reasonableness assessment.

I see some force in those criticisms. I do not think that para. 40 of the Reasons falls into the crude error of treating as determinative the fact that the conditions which an applicant would experience in the safe haven are experienced by (at least) a significant minority of other people in the country: on the contrary, the Tribunal expressly acknowledges that even if that is the case there are the further questions to be considered which it identifies in the second part of the paragraph. But I do agree that its formulation could be understood to be prescribing a step-by-step analysis, in which the “significant minority” question comes first. That way of approaching the question will not necessarily lead to an error of law, but I think that it is unhelpful because it puts the focus on a particular element in the exercise and risks distorting its essentially holistic nature. I also agree that the range of relevant matters goes beyond the particular examples mentioned by the Tribunal. Having said that, it is necessary to read para. 40 in context. Despite some of the language used, I am not convinced that it was intended by the Tribunal as a definitive summary of the relevant law. It was directed very much to resolving the dispute between the parties as to the effect of Lord Brown’s speech in AH (Sudan), particularly in the light of AA (Uganda), and the structure and language reflects that focus. The real question must be what exercise the Tribunal in fact performed when it came to its dispositive reasoning, to which I now turn.

As to that, I have explained the structure of the Reasons at paras. 13-21 above. As there noted, in addressing what I have called issue (2), the Tribunal carefully reviewed the relevant evidence under the various heads relevant to the reasonableness issue, as identified in the UNHCR Guidelines; and it proceeded to make findings under each head before proceeding to the overall conclusion in paras. 230 and 241

I am not persuaded that the Tribunal fell into those errors. As regards the security risk, the passages quoted in connection with ground 1 clearly show that it applied an objective standard (notwithstanding its factual error) and did not proceed on the basis simply that the risk to returnees was no worse than for other inhabitants of Kabul. As regards the other factors, it would be surprising if it had taken a different approach, not least because the UNHCR Guidelines by reference to which it structured its reasoning are themselves couched in terms of objective standards; and although I have found no explicit statement to this effect my clear overall impression is that here too its finding was that the conditions under which the returnees would live in Kabul were, objectively, not unduly harsh. Ms Naik referred us in particular to para. 249 (para. 22 above), but I do not believe that that supports her case. Although it does indeed find that the Appellant would be “returning to living and humanitarian conditions in Kabul which affect the majority of the population” it goes on to make a distinct finding that “he could live a relatively normal life [there] without undue hardship”, and its overall finding was that it would not “be unreasonable or unduly harsh for [him] to internally relocate to Kabul”. Overall, I do not believe that the Appellant has demonstrated any error of law in the exercise performed.

I should also say that on the Tribunal’s actual findings the particular issue based on Lord Brown’s “significant minority” observations did not really arise. In the case of most at least of the elements which it considered it found that the situation in Kabul was no worse, or in some respects better, than in many other parts of Afghanistan. For example, at para. 199, having referred to maps showing the worst affected provinces by number of security incidents both absolutely and by reference to population, it found:

“On neither measure is Kabul the worst or even one of the worst affected areas. We find that the security situation is one which affects the majority of the population of Afghanistan and extends throughout the majority of the territory.”

Likewise, at para. 229 it found that

“… if anything, the economic conditions in Kabul, the capital city in which there are greater employment opportunities than other, particularly rural areas, are better than other parts of Afghanistan”.(This is probably not decisive, however, because, as I understand it, in principle Ms Naik’s submission would stand even if the conditions in question were common to a majority of the Afghan population: she would say that it was still necessary in such a case to assess whether it was objectively reasonable to expect returnees to live under those conditions.)

In support of her submission that the Tribunal had misdirected itself Ms Naik relied in part on the fact that the conditions which it had found that returnees to Kabul would encounter were in fact those of the poorest of the poor in Afghanistan, and she submitted that Lady Hale had said at para. 28 of her speech in AH (Sudan) that that was unacceptable. That is a misreading of the passage in question (and also an example of the approach which I deprecate at para. 68 above). Lady Hale’s reference to “the poorest of the poor” was made as part of her rejection of the idea that as long as there were other people living in the same conditions as the returnees would encounter it would be reasonable to expect them to endure those conditions, however bad (at any rate if they were above the article 3 threshold). That is (with respect) plainly right; but it is not the same as saying that it will be automatically unreasonable for returnees to live at the level of the poorest part of the population.

Ms Naik also criticised the Tribunal for rolling up what she said were the distinct questions of reasonableness and undue harshness. I do not accept that criticism. These concepts are two sides of the same coin. As Lord Hope put it in Januzi, “the words ‘unduly harsh’ set the standard that must be met for [relocation] to be regarded as unreasonable” (see para. 47 of his speech).

Neither in her skeleton argument nor in her very brief oral submissions on the point did Ms Naik develop head (b) any further than my summary at para. 60 above. Mr Singh in his skeleton argument acknowledged that there was no express reference in the Reasons to the difference between the Appellant’s life in Laghman and his life as it would be in Kabul, but he submitted that it was not a factor of sufficient weight to require specific mention. He said that “the conditions in Laghman as disclosed by the documentary evidence were uncontroversial” and noted that there was no suggestion

“that there was any evidence about the Appellant’s home area or his life there that was ignored by the UT”.

Given the sparse nature of those submissions I can only deal with this point shortly. It is hard to think that there would not be a real difference between the Appellant’s life in Laghman, which is a largely rural province (though close to Kabul), and the life which he would lead in Kabul; and in principle that is a relevant consideration in assessing the reasonableness of relocation. I think it extremely unlikely that the Tribunal simply ignored this aspect (which is of course expressly referred to in AH (Sudan)); and it would have been better if it adverted to it in some way. But it certainly cannot be assumed that life was, or would be, better for the Appellant in Laghman (even leaving aside the risk of persecution to which he was subject there) than it would be in Kabul, whether in terms of security risk or living conditions:

For the reasons given I would allow the appeal on ground 1 but dismiss it on ground

In those circumstances it seems to me that the remittal to the Upper Tribunal can and should be on the basis that it need reconsider its conclusions only on the question of the extent of the risk to returned asylum-seekers from security incidents of the kind considered at paras. 190-9 of its Reasons. Although of course the relevance of that risk is to the overall issue of whether it is reasonable for asylum-seekers to be expected to relocate to Kabul, it is in practice a self-contained element within that assessment, and since I would hold that there was no error of law in the Tribunal’s approach to the other elements I see no reason why those elements require to be reconsidered.

The fact that the remitted issue is self-contained means that there would be no difficulty in it being heard by a differently-constituted Tribunal; and I think that in the circumstances of the present case, given the nature of the error on ground 1, that would be the correct course. A fresh Tribunal would of course not be privy to the evidence called on the previous occasion, or the submissions made; and that would mean that the evidence as to security risk adduced at the previous hearing would have to be adduced again (unless agreed), together with any updating evidence that might now be available, and further submissions made. But the scope of the remitted hearing would still be far more limited than first time round.

Those limits on the scope of the remittal are subject to one important qualification. We were told that last year, after the decision of the Upper Tribunal, UNHCR produced further Guidelines on returns to Afghanistan, which, unlike the 2016 version, unequivocally recommend that “given the current security, human rights and humanitarian situation in Kabul, an IFA/IRA is generally not available in the city”. It will be for the Tribunal, no doubt after hearing submissions, to consider whether that assessment requires a reconsideration of its country guidance on a more extensive basis than is required by the remittal of this appeal. If it decides that it does, it is likely to make sense either for the scope of hearing to be increased or (which may be procedurally more correct) for the remittal in this case to be heard along with whatever appeal is the vehicle for that wider consideration.

I agree.

I also agree.