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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> STARRED Secretary of State for the Home Department v AE & Anor Sri Lanka [2002] UKIAT 05237 (12 November 2002) URL: https://www.bailii.org/uk/cases/UKIAT/2002/05237.html Cite as: 2003 Imm AR 152, [2002] UKIAT 5237, [2003] Imm AR 152, [2002] UKIAT 05237 |
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Secretary of State for the Home Department v AE & Anor Sri Lanka
[2002] UKIAT 05237
APPEAL No. HX/17516/2001; CC/12439/2001 (STARRED)
Date of hearing: 10 July 2002
Date Determination notified: 12 November 2002
SECRETARY OF STATE FOR THE HOME
DEPARTMENT |
APPELLANT |
and |
|
A.E. and F.E. | RESPONDENT |
"There is a serious possibility that the Security forces in the Jaffna area will remember him if he returns, even after a gap of more than 2 years. He has a current well-founded fear in the north of the island".
That conclusion is now unlikely to be correct. However, the appellant did
not seek to challenge it before us and the respondents' counsel was not
required to consider it. In the circumstances, we are prepared to accept the
adjudicator's conclusion and to approach this appeal on the basis that the
husband has a well-founded fear of persecution in his home area, namely the
north of Sri Lanka
. But, as we have already noted, the adjudicator made no
such finding in relation to the wife and decided that neither was reasonably
likely to be persecuted in Colombo. The husband's scars, though visible, were
not likely to be material since his age was such as not to put him at risk of
being rounded up nor would he be likely to be interrogated on return. These
findings have not been challenged and they are undoubtedly correct in the
light of the present situation in
Sri Lanka
.
"She told me that she gets some tablets from her general practitioner but hadn't got these with her".
He examined her in October 2000. The hearing before the adjudicator was in May 2001 and before us was in July 2002. No further medical evidence was forthcoming and in particular no indication was given that any treatment had been sought or provided. Dr. Turner does not seem to have been asked to pursue the matter any further.
"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 has 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.
"However, 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 toSri Lanka
. Dr. Turner's prognosis is that psychotherapy and counselling will be of no avail to her as long as she remains in fear and uncertainty about returning to
Sri Lanka
. The consequences of actually going back while she remains in an acutely traumatised state are too serious to make a reasonable outcome in this case. The appeals are therefore allowed".
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 consequences of going back which make it unreasonable to expect the appellants to do so and thus to justify a conclusion that they are refugees.
"In such circumstances, 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".
If his wife cannot be expected to return, it is not reasonable to expect him to return since the family should remain together. That we must assume reflects the adjudicator's reasoning.
."It follows that if the home state can afford what has variously been described as 'a safe haven', 'relocation', 'internal protection' or 'an internal flight alternative' where the claimant could not have a well-founded fear of persecution for a Convention reason, then international protection is not necessary. But it must be reasonable to expect him to go to and stay in that safe haven…".
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".
It must be borne in mind that he will only be entitled to that status if he shows that he has a well-founded fear of persecution for a Convention reason. Lord Woolf summarises the correct approach at p.943B in these words:-
"In our judgment, the Secretary of State and the appellate authorities would do well in future to adopt the approach which is so conveniently set out in Paragraph 8 of the European Union's Joint Position. Where it appears that persecution is confined to a specific part of a country's territory the decision-maker should ask: can the claimant find effective protection in another part of his own territory to which he or she may reasonably be expected to move? We have set out, ante, pp.939H-940B, appropriate factors to be taken into account in deciding what is reasonable in this context. We consider the test suggested by Linden J.A. in the Thirunavukkarasu case, 109 D.L.R. (4th) 682, 687, "would it be unduly harsh to expect this person … to move to another less hostile part of the country?" to be a particularly helpful one. 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".
. "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 and freedoms without discrimination. In the Thirunavukkarasu case, 109 D.L.R. (4th) 682, 687, Linden J.A., giving 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".
Lord Woolf there lays emphasis on the preamble to the Convention. The first paragraph of this reads: -
"Considering that the Charter of the United nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human being shall enjoy fundamental rights and freedoms without discrimination".
The Universal Declaration of Human Rights is proclaimed as a common standard of achievement for all people and all nations. The rights set out in it are similar to those contained in the European Convention on Human Rights and in the International Covenant on Civil and Political Rights (ICCPR).
"The argument turns on the correct interpretation of a few words contained in the definition of 'refugee' in Article 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 country" (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 but 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".
This shows that the threshold is a high one but the 'small amount of humanity' will apply to enable regard to be had to the situation in the safe area and if it will not afford basic human rights IR will not be reasonable. Nonetheless, the risk of compulsion to go to his home area is likely to be in many cases a helpful test. And the height of the threshold is illustrated by the decision of the EctHR in Bensaid v United Kingdom. In reality, the application of the preamble will mean that where IR is in issue the Refugee Convention and the European Convention on Human Rights will march together. That in our view is justified because the individual in question has shown that he does have a well-founded fear of persecution in his home area and may well have left the country of his nationality because of that fear. To send him back to suffer treatment that fails to afford him his basic human rights can properly be regarded as unduly harsh and unreasonable.
"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 that expression "unduly harsh" it would be unduly harsh to insist on 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 an terminal illness or suffering from a 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.
MR JUSTICE COLLINS
PRESIDENT